The fate of the Voting Rights Act, at issue in Louisiana v. Callais, might depend on a devastating decision from six years ago.  

In 2019, in Rucho v. Common Cause, the Supreme Court refused to entertain partisan gerrymandering claims, declaring that “a jurisdiction may engage in constitutional political gerrymandering.” That statement could now insulate maps that harm minority voters—a move that would hollow out Section 2 of the landmark 1965 law. 

Section 2 of the Voting Rights Act is a nationwide provision that prohibits any voting rule that “results” in discrimination based on race. Congress adopted this “effects” test in 1982 after the Supreme Court interpreted the prior version to reach only discriminatory intent. Under the current formulation, intent is irrelevant; the question is whether the effect of a rule negatively impacts minorities. In 1986, in Thornburg v. Gingles, the Court set out a test that it is has used ever since to determine whether a map dilutes minority voting strength: Can the plaintiffs draw a different map that creates additional, compact majority-minority districts, is there racial bloc voting—that is, does a white majority tend to outvote a racial minority’s preferred candidate—and, under the “totality of the circumstances,” is there a history of discrimination in the state? That test has allowed courts to root out the worst abuses, especially in the South, where minority voters are often prevented from banding together and electing a candidate of their choice. 

Last term, the Court heard a Louisiana case regarding this provision. The state has six congressional districts, and roughly 33 percent of its population is Black. However, in the initial map the state drew, Black people were the majority in only one district. Applying the Court’s test for Section 2, a lower court ruled that the map violated the Voting Rights Act. To remedy the problem, Louisiana drew a new map with two majority-Black districts.  

Then, white plaintiffs sued, saying that the map was an unconstitutional racial gerrymander because the state considered race too much. The state claimed it sought to remedy the Section 2 violation while protecting two key Republican incumbents. But instead of ruling whether Louisiana’s consideration of race in the new map was unlawful because it was the predominant consideration, the Court set the case for re-argument this term, raising a much broader question: if Section 2 requires states to consider race when drawing maps, is Section 2 itself unconstitutional? Can Congress use the Fourteenth and Fifteenth Amendments, ratified after the Civil War, to ensure equality?  

The answer to that question should be easy: Congress has full authority under these Reconstruction Amendments to require racial equality in voting. A suggestion that Section 2 is unconstitutional is simply another attempt to erase race from the law, even when doing so would ignore the continuing effects of discrimination. 

Yet the Court may not state explicitly that Section 2 is unconstitutional, especially if the Court’s majority can achieve the same goal by twisting the test in a way that makes it virtually impossible for a plaintiff to win. The Court already used this tactic in 2021 in a case out of Arizona, crafting an arbitrary test for claims of outright vote denial under Section 2. It could apply a similar dismantling strategy to Section 2 claims related to maps that dilute minority voting strength.  

Early in the Louisiana v. Callais oral argument, Justice Samuel Alito asked a key question that might be the whole ballgame: “Under Rucho, isn’t seeking partisan advantage also an objective that a legislature may legitimately seek?” His query suggests that the Court might neuter Section 2 by saying that partisanship is a valid defense to a map, even if the plaintiffs show that the lines harm minority voters.  

Janai Nelson, a lawyer for the NAACP Legal Defense Fund, deftly and correctly answered that question at oral argument: “Not if it comes at the cost of the equal protection principle and the Fifteenth Amendment’s prohibition on race discrimination in voting.” Put differently, a state should not be able to cite a partisan goal to insulate itself from its map harming minority voters. Otherwise, the promise of the amendment, which prohibits racial discrimination in voting rules, would become a dead letter.  

Several justices, however, kept returning to the idea that partisanship is a “neutral” districting principle that a state may validly promote. Justice Alito once again noted that because of Rucho, a state could consider partisanship and incumbent protection as a “permissible legislative objective.” Justice Brett Kavanaugh twice asked the lawyers about the idea that the Court should hold that “Section 2 plaintiffs cannot claim a lack of equal openness where politics, rather than race, is the likely reason for the state’s refusal to create a majority-minority district.” Justice Kavanaugh did not tip his hand at how he was thinking about that issue, but his repeated mention shows that he believes it is a worthwhile argument to consider. Justice Neil Gorsuch, too, highlighted a state’s political objectives as a key consideration.  

But that inquiry turns Section 2 of the Voting Rights Act on its head and, as Nelson pointed out in response, “would swallow Section 2 whole” because “party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process.” 

The case, then, should be about race, not partisanship. It might make sense to consider a state’s partisan motivation when asking about its intent (though courts should strike down maps drawn to achieve a partisan goal). Still, partisanship should have no bearing on whether the map has a discriminatory effect. Nothing is “neutral” about a state seeking to achieve a political end by skewing the maps. And as Travis Crum, a law professor at Washington University in St. Louis, pointed out, elevating partisanship isn’t a traditional redistricting criterion—it’s a judicial invention from Rucho only six years ago. 

If the Court says that partisanship insulates a state from a Section 2 claim of discriminatory effect, then this pivotal provision will have much less utility. It will be another nail in the coffin of voting rights protections, part of a long line of recent cases in which the Court has narrowed the scope of the Voting Rights Act and unduly deferred to states in their voting rules.  

Rucho, the 2019 case, was wrong when it accepted partisan gerrymandering as constitutional. Extending that principle as a defense to racial discrimination in redistricting is contrary to constitutional law, settled precedent, and the needs of a multi-racial democracy. 

The post How the Roberts Court Could Neuter the Voting Rights Act  appeared first on Washington Monthly.

Democracy is rigged when the politicians decide who wins before any vote is cast. But that is precisely what is happening in several states that are redrawing their congressional districts only a few years after they enacted maps based on the 2021 census. Ordinarily, states redraw maps once a decade, after the census, to ensure each district has roughly equal population. This process satisfies the doctrine of one person, one vote. Of course, many states gerrymander to favor one party, but at least the timing is tethered to a legal obligation: adjusting districts once every ten years. Now, states are breaking that norm with mid-decade redistricing.

Texas, encouraged by President Trump, redrew its congressional lines last month to tilt the 2026 midterms—flipping five Democratic-leaning districts into Republican ones. California, in response, put a measure on the ballot for this November to change its own map—drawn by an independent redistricting commission—to create five stronger Democratic districts. The Missouri legislature just passed a new map splitting the Kansas City area into several districts to weaken Democratic strength and likely pick up a Republican seat. Other states, such as Illinois and Nebraska, are also considering mid-decade redistricting. It’s a race to the bottom with partisan gerrymandering running rampant.

When Texas attempted a similar ploy in 2003, the U.S. Supreme Court ruled that nothing in the U.S. Constitution or federal law prohibited a mid-decade districting. (However, the Court struck down the map on other grounds.) The Court then abdicated its role to ensure fairness in its 2019 Rucho v. Common Cause decision, stating that federal courts cannot hear partisan gerrymandering cases. The new mid-decade maps might violate Section 2 of the Voting Rights Act, as plaintiffs in Texas have already argued in a new lawsuit. Still, the Court has signaled that it might invalidate or severely hamper that provision in its upcoming case out of Louisiana.

That leaves state courts as the only real backstop. State courts committed to upholding the ideals of democratic representation within their state constitutions should adopt a presumption of unlawful partisanship for a mid-decade redistricting and invalidate these maps.

Three aspects of state constitutions support a presumption of unlawful partisanship.

First, nearly every state constitution includes a commitment to democracy and popular sovereignty. As law professors Miriam Seifter and Jessica Bulman-Pozen have shown, these state constitutional provisions express a commitment to the people as supreme. A mid-decade redistricting, conducted solely to achieve a partisan end, flips that principle on its head. Politicians are punishing the people for their previous choices by changing the maps. These states have no legal compulsion to do so, as they are not responding to a court order about an earlier map and do not need to adjust the lines to fix population inequality. They simply want to skew the results.

Second, some state constitutions tie the timing of redistricting to the census. For example, Missouri’s Constitution says that the legislature shall draw congressional districts after “each census . . . is certified to the governor.” The Missouri Supreme Court, in a case called Preisler v. Doherty in 1955, ruled that this provision means that redistricting may occur only once per decade following the census “because the decennial census is made the basis of reapportionment.”

Plaintiffs have already filed suit in state court against the Missouri map, invoking this provision. The Missouri courts should apply the state constitutional language to invalidate the map. Other state constitutions, such as those in Illinois and Texas, tie state legislative redistricting to the census without addressing the timing of congressional redistricting, yet the same principle could apply.

Finally, mid-decade redistricting inherently violates the principle of one person, one vote and the requirement of equal population between districts. States use census data to draw new lines, and of course, those districts will become less equal throughout the decade as people are born, die, and move. Yet the new maps rely on outdated census numbers, making them unequal.

Creating a map with population equality right after the census is one thing, even though the map will become outdated as populations shift. Using data from 2021 to draw a new map in 2025 is quite different. These maps are not equal at their start, violating many state constitutional provisions that demand elections to be “free and equal.” 

A state court should therefore apply a presumption of unlawful partisanship any time a state passes a second map before the next census, as is happening right now. Importantly, this standard would mean that courts would not have to measure the partisan effect of the new map or make a judgment about when politics was “too much” in the line-drawing process, which was the Supreme Court’s primary concern when it removed itself from policing partisan gerrymandering in the Rucho case. The partisan effect of the new map is irrelevant because there should already be a presumption of partisan intent.

A state would need to provide a non-political justification for changing its map in the middle of the decade. Perhaps a natural disaster caused a major population shift, and the districts are woefully unequal, causing skewed representation for the rest of the decade (though the state would need accurate data on population shifts to better comply with population equality). Maybe a state enacts an independent redistricting commission and wants to have that commission redraw a previous legislatively-drawn gerrymander. Most of the time, however, this presumption should lead a court to invalidate a mid-decade redistricting, which will hopefully discourage states from engaging in the practice in the first place.

There is, however, a practical problem: what if the California court strikes down its gerrymander but the Texas court upholds its map, even though the two state constitutions are substantially similar? Given that the California legislature acted explicitly to counter the Texas gerrymander, the court in California should follow the Texas court’s lead. This is not a question of constitutional law but of practical import given the nature of the re-redistricting currently taking place. It is a bad solution, to be sure, as each court should analyze its state constitution consistently with its own history, tradition, and precedent, not based on what a court in another state has done. Maybe conflicting rulings from different states on the same issue is the price to pay for our system of federalism. It would be best for each state court to rule independently that the principles from its state constitution support a presumption of unlawful partisanship for a mid-decade redistricting.

Given Supreme Court jurisprudence, which has made it harder for plaintiffs to challenge state election laws on numerous levels, state courts must fill the void. State constitutions are more explicit in offering robust protections for voters. State courts should invoke these provisions to adopt a presumption of unlawful partisanship whenever a state undertakes a mid-decade redistricting. By striking down these new maps, the 2026 midterm elections will allow voters—not politicians—to decide who controls Congress.

The post Mid-Decade Redistricting: Why State Courts Should Be Suspicious appeared first on Washington Monthly.

In what is likely another attempt to distract from his many failings and broken promises, Donald Trump declared on his social media network that he is “going to lead a movement to get rid of MAIL-IN BALLOTS” and that he will do it unilaterally. He continued: 

WE WILL BEGIN THIS EFFORT, WHICH WILL BE STRONGLY OPPOSED BY THE DEMOCRATS BECAUSE THEY CHEAT AT LEVELS NEVER SEEN BEFORE, by signing an EXECUTIVE ORDER to help bring HONESTY to the 2026 Midterm Elections. Remember, the States are merely an “agent” for the Federal Government in counting and tabulating the votes. They must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do. 

In case anyone missed the point, on Monday, at the press conference for his high-stakes summit with Ukraine’s leader, he repeated his anti-mail-in ballot tirade as Volodymyr Zelensky looked on.   

You will not be surprised to hear that the federal government does not manage America’s elections, and state and local elections officials need not do what the President tells them. 

Nevertheless, Trump’s disparagement of vote-by-mail could prompt Republican governors and state legislators to pursue a fresh round of mail voting restrictions, and Republican political operatives to discourage mail voting among their rank and file.  

Following Trump’s advice on mail-in balloting would be bad … for Republicans.  

In the 2024 election, Republicans eased their unjustified opposition to mail balloting—Trump never abandoned it, but he softened his criticisms under pressure from party leaders—and it proved successful. The New York Times reported earlier in January: 

Republicans made almost universal gains in mail voting during the 2024 election, eroding a key Democratic advantage in nearly every state that tracks party registration, according to a data analysis by The New York Times. The Republican rise in the use of mail voting was almost always accompanied by a drop in registered Democrats casting a mail ballot, allowing Republicans to make significant inroads in battleground states like Pennsylvania, red states like Florida and blue states like Connecticut. 

In Pennsylvania, Republicans deployed a “multifaceted campaign of messaging, fund-raising and field operations,” boosting their share of the mail vote from 24 percent in 2020 to 33 percent in 2024. This proved critical. The Times reported: 

Before Election Day, some Democrats speculated that the Republican gains in mail voting simply represented a shift in which high-frequency G.O.P. voters had decided to cast early ballots, “cannibalizing” the party’s Election Day vote. But Republicans’ overall turnout edge proved to be real, and their improved early-voting numbers gave their campaigns an advantage. “When we were looking at daily returns and saw huge gains in the Republican vote-by-mail share compared to previous election cycles, we knew we were on the right pathway to winning this election,” said Matt Gruda, who managed [Dave] McCormick’s [Senate] campaign. “We were seeing these gains not only among the most frequent voters but even more so also among the voters who rarely vote in our elections.” 

And just because Pennsylvania Republicans were still the minority of mail voters doesn’t mean that’s true everywhere. The Times also noted: 

In deep-red Oklahoma, Kansas, and Iowa, Republicans made up a majority of mail voters in last year’s election, after Democrats dominated in those states in 2020.  

And in Arizona, a swing state where a vast majority of voters cast their ballots by mail, Republicans had an eight-point advantage over Democrats in mail voting. 

That many Republicans out West had no hang-ups probably stems from the fact that mail-in voting got some of its biggest early boosts from Western Republican governors and secretaries of state. 

None of this surprised me because I wrote in 2021 that the conventional wisdom, held by most major party leaders, that easier voting access inherently benefits Democrats, was clearly wrong. Republicans have won in states with high mail voting. Democrats have also won races in states with strict voter ID laws. And there is nothing about mail-in voting that is naturally more appealing to Democrats than Republicans. 

Before 2020, voters regardless of party affiliation “tended to just take advantage of the process, whatever it was in a state,” including vote by mail and early voting, according to John C. Fortier, a resident scholar at the right-leaning American Enterprise Institute. So the partisan split about traditional and nontraditional voting methods that we saw [in the 2020 presidential election], fueled by Donald Trump’s disparagement of mail voting and polarization around the merits of social distancing, should not color our views about which party would benefit from Democratic proposals to nationalize and encourage such methods. 

But now that Trump is back to full-throttle disparagement of mail voting, the gains Republicans made in 2024 may be reversed.  

Trump’s MAGA movement includes many low-propensity, unreliable voters, often in rural areas. In future elections, Republicans won’t have their greatest motivator of low-propensity voters on the ballot: Trump himself. He will never be on the ballot again, no matter what MAGA leaders see in their fever dreams. In turn, Republicans should recognize it is in their interest to make it easier for people in far-flung rural areas to vote by mail at home, instead of forcing them to travel long distances in uncertain weather to vote in person.  

But what is in the Republican Party’s long-term interest isn’t necessarily what is in Donald Trump’s short-term interest. And as far as I can tell, Trump perceives his short-term interest to be promoting conspiracy theories to justify power grabs. No Republican should feel obliged to indulge Trump’s self-serving paranoia.

The post Trump Demands: Ditch Vote-By-Mail. Republicans Shouldn’t appeared first on Washington Monthly.

President Donald Trump just issued another executive order that violates the U.S. Constitution and federal law, attempts to aggrandize his power, and undermines the foundation of our democracy.

The entire premise of the order, “Preserving and Protecting the Integrity of American Elections,” is based on falsehoods, including the following: “The United States now fails to enforce basic and necessary election protections employed by modern, developed nations, as well as those still developing.” That’s wrong.

For one, states, not the federal government, administer elections. They all employ best practices to ensure fair and fraud-free voting, including pre-election security checks and post-election audits. No other country has such a decentralized system. Though local control of elections has flaws—such as a lack of uniform rules for registration deadlines or the number of early voting days—it also allows for greater scrutiny.

The order then purports to mandate new rules for the states. But, the president does not have the authority to regulate elections. Even if Trump did have this power, most of the order’s commands would make our elections worse, not better. Several violate federal law.

First, the U.S. Constitution does not allow the president to dictate election rules. Article I says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” States set election rules and Congress can override them. Beyond signing or vetoing a congressional enactment, the president has no say.

The executive order improperly tries to direct an independent federal agency, the Election Assistance Commission (EAC), to undertake several tasks. Congress created the EAC as an independent entity in the Help America Vote Act of 2002 (HAVA). The EAC is explicitly bipartisan: two members must be from one political party and two are from the other. The statute creating the Commission does not give the president authority to direct the Commission on its activities. Instead, HAVA explicitly calls the Commission “independent.”

Second, Trump’s executive order contradicts federal law and best practices. The heart of the EO tries to implement the Safeguard American Voter Eligibility Act (the SAVE Act), which is currently under consideration in Congress. The SAVE Act would require states to make voters show documentary proof of citizenship when registering to vote, a high hurdle for the millions of voters who do not have easy access to these documents. There is also no evidence of massive noncitizen voting, so the SAVE Act is a solution in search of a problem. Although the House may pass the act, it will likely face a filibuster in the Senate that would prevent its enactment. Trump, through his executive pen, is trying to do an end-run around Congress.

Even worse, the EO goes even further than the SAVE Act in invoking executive power to try to adopt rules that are contrary to federal law. HAVA directs the EAC to create a federal form that states must use for voter registration. The form “may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”

As the U.S. Supreme Court recognized in a case from Arizona in 2013, “The Federal Form developed by the EAC does not require documentary evidence of citizenship; rather, it requires that an applicant aver, under penalty of perjury, that he is a citizen.” Arizona, therefore, could not require documentary proof of citizenship from new registrants who use the federal form. Instead, Arizona now has a dual registration system: those who use the federal form and do not show proof of citizenship may vote only in federal elections. In contrast, voters who do present their proof of citizenship can vote in both federal and state elections. New Hampshire also implemented a proof of citizenship requirement and experienced significant disenfranchisement.

Notably, federal law does not give the president any authority to dictate the contents of the federal form. If Congress passes the SAVE Act, the next question is whether the rule would

violate the constitutional right to vote because it would likely preclude millions of people from registering. But at least Congress can amend federal election law; the president cannot.

The order also attacks the rules of 18 states and the District of Columbia that accept ballots received after Election Day but are postmarked before then. That practice, which has existed in some places for years, ensures postal delays do not cost citizens their vote. The EO is correct that the conservative Fifth Circuit Court of Appeals recently held that the practice contradicts federal law, which sets a uniform Election Day for federal elections. Still, the reasoning of that judicial opinion was highly flawed. Election law expert Rick Hasen called the decision “bonkers.” A uniform Election Day means that voters cannot cast their ballots after Election Day, but it says nothing about when election officials must receive those ballots. Trump’s hyperbolic EO claims that counting ballots postmarked by Election Day but arriving a few days later is “like allowing persons who arrive 3 days after Election Day, perhaps after a winner has been declared, to vote in person at a former voting precinct, which would be absurd.” Of course, a voter who mails a ballot by Election Day is not casting a vote after the winner is known. No state allows voters to cast ballots after the fact. Moreover, the EO once again invokes power the president does not have by directing the EAC to implement this policy, saying that the Commission must withhold funding from states that do not comply. The federal government allocates very little money to states to administer elections in the first place, and Congress, not the president, controls EAC funding.

The EO also directs DOGE (the Elon Musk-backed Department of Government Efficiency) and the Department of Homeland Security to review states’ voter registration lists, raising privacy concerns. During Trump’s first term, his Election Integrity Commission sought voter registration information from states, which almost uniformly refused to comply because of the privacy implications. Many election officials, including Republicans, said they would not send the federal government this data. Those privacy concerns still exist.

Then there are the voting machines. The EO raises the specter that voting machines might be connected to the internet (they are not). It directs the EAC to “review and, if appropriate, re-certify voting systems” within 180 days under new standards. The problem, as Votebeat points out, is that “there are currently no voting machines on the market that have been certified to these standards. So, no jurisdiction in the country currently uses such systems—nor could they begin to within 180 days, because none are available for purchase.” And once again, the president has no authority to tell states which voting machines to use or to direct the EAC on its certification process.

Perhaps the entire thrust of the EO is encapsulated in how it rescinds a Joe Biden-era Executive Order, “Promoting Access to Voting,” and instead peddles the myth of noncitizen voting and massive voter fraud to justify voter suppression. There is nothing here about voter access. It is all about voter suppression and sowing doubt in our election processes.

The EO will indeed be challenged in court. If the courts follow the U.S. Constitution and federal law, they will swiftly strike it down. Congress should scuttle this attempt to aggrandize power in the executive branch. If checks and balances mean anything, then the president cannot simply order a bipartisan, independent agency to do his bidding to thwart democracy.

The post What’s Wrong with the Trump Administration’s New Election Rules? appeared first on Washington Monthly.

Election Day is here, and all eyes will be on the presidential results, even though we may not know the winner for a few days. Control of Congress is also up for grabs and will take time to determine. These offices impact the right to vote, given the differing views of the two presidential candidates and the jurists they will nominate and confirm.

As an election law professor, I will also be attuned to the ballot measures that will impact elections for years. As Professor Richard Pildes wrote in The New York Times, “Americans in a number of states will also be voting on some of the most significant sets of political reforms in decades. . . . These ballot measures — in red, blue and purple states — constitute a major referendum on whether we can reduce political extremism through institutional change.”

Beyond reforms to party primaries (the central focus of Pildes’s piece), numerous states and localities have ballot initiatives impacting democracy. The indispensable Bolts Magazine “What’s on the Ballot” guide lists 28 ballot measures that address voting and election rules.

Ranked Choice Voting (RCV) will have its “biggest election day yet,” according to the advocacy group FairVote, as voters in four states and four cities will decide whether to implement this voting system. RCV lets voters rank-order their preferences instead of choosing just one candidate, minimizing the “lesser of two evils” conundrum that voters often face. The American iteration of this system began in 2004 in San Francisco. It then spread to other cities and eventually statewide in Alaska and Maine. Now, Colorado, Idaho, Nevada, and Oregon voters will determine whether to use RCV for future elections. (Nevada voters already approved it once, in 2022, but it must pass twice to become law.) Richmond, California; Oak Park, Illinois; Peoria, Illinois (in a non-binding referendum); and Washington, D.C. will also decide whether to adopt RCV for its future local elections; they would join the 50 jurisdictions that already use RCV—including Alaska, Maine, and 12 cities and counties that are employing it this November. Meanwhile, Alaska, which uses RCV and a top-4 primary system—in which voters choose among all candidates in a primary and the top four, regardless of party affiliation, move on to the general election—will decide whether to repeal the measure. Arizona, Missouri, and Bloomington, Minnesota, voters will also determine whether to ban RCV for all elections.

Ohio and Los Angeles, California, will decide whether to adopt independent redistricting commissions. The Ohio measure is sorely needed after the partisan commission drew skewed maps after the 2020 census, which the Ohio Supreme Court struck down several times. The Los Angeles measure responds to a scandal involving city council members making racist comments as they discussed the maps they would draw.

The electorate could be expanded or restricted in several places: eight states (Idaho, Iowa, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina, and Wisconsin) will decide whether to amend their state constitutions so that only citizens may vote, which would preclude their localities from allowing noncitizens to vote in local elections. These measures would also soften the strong protection that state constitutions provide to the right to vote. They are especially concerning given that noncitizens are not illegally voting to any measurable degree. In the opposite direction, Santa Ana, California residents will decide whether to follow a few other jurisdictions that legally allow noncitizens to vote in municipal elections.

Iowa voters will determine whether to let 17-year-olds vote in a primary election if they are 18 by the general election. Albany, California, voters will decide whether to lower the voting age to 16 for local elections, following several cities in California, Maryland, and Vermont that have adopted this reform for all local elections or school board elections. (Newark, N.J., will implement a voting age of 16 for its school board elections next year.)

Connecticut voters will decide whether to enshrine no-excuse absentee voting in its state constitution. If the measure passes, Connecticut will join 36 other states and D.C., which either allow no-excuse absentee voting or automatically mail a ballot to all voters. Meanwhile, a Nevada measure could restrict access by amending the state constitution to require voters to present a photo ID. The initiative would cut against the Nevada constitution’s voters’ bill of rights, which is a list of safeguards that Nevada voters passed in 2020.

Arizona and North Dakota voters will decide whether to make it more challenging to enact citizen-led initiatives, an obvious pushback against efforts to go around the legislature to enact pro-voter reforms. Advocates in Dallas, Texas, want to move in the opposite direction and make it easier to enact local ballot initiatives, extending the time to obtain citizen petitions and lowering the signature threshold from 10 percent of the city’s qualified voters to 5 percent.

Campaign finance is on the ballot in two places: Florida voters will decide whether to repeal public financing of campaigns, while Maine will determine whether to restrict donations to PACs to $5,000, though if it passes, the measure might violate the legal principle behind the D.C. Circuit Court of Appeals decision that came a few months after the Supreme Court’s 2010 ruling in Citizens United; that D.C. Circuit decision, however, was about federal law, not a state law, and proponents have said they are seeking to set up a legal challenge that could create favorable precedent on limiting outside money in campaigns—though with the current Supreme Court, the maneuver could well backfire by dismantling the campaign finance regime even further.

This year is not necessarily unique in asking voters to decide how our elections should operate. 2023 saw numerous ballot initiatives to reform our voting process. So did 2022. Given that many people lack confidence in our election system, these measures are more critical than ever.

We may not know the presidential election winner on Tuesday night, but these ballot measures will tell us more about the strength of our democracy and the rules that will govern the next elections.

The post What I’m Watching on Election Night appeared first on Washington Monthly.

Democracy itself is on the ballot this year. So is the fundamental right to vote.

Beyond stark differences in their fidelity to democratic principles, Kamala Harris and Donald Trump have divergent approaches to voting rights. As I’ve long advocated, bipartisanship in voting rules is best. Hopefully, whoever wins will work across the aisle to enact meaningful, bipartisan reforms that make voting more accessible and secure. That said, the two candidates have vastly different views. Here is a rundown based on what they have said, done, and promised on voting rights.

Kamala Harris

The vice president’s record and statements show that if she takes office in January, she will continue to focus on expanded voting rights opportunities.

In her acceptance speech at the Democratic National Convention in August, Harris referred to the “freedom to vote” as “the freedom that unlocks all the others.” As senator and vice president, she strongly supported the John Lewis Voting Rights Act and the Freedom to Vote Act, two laws that could transform how states run elections. President Joe Biden tapped Harris to lead his administration’s focus on voting rights, including passage of these two laws. Both laws stalled because of objections from Senate Republicans.

The John Lewis Act would reinstitute some of the 1965 Voting Rights Act protections that Supreme Court rulings have harmed. The Freedom to Vote Act would mandate expanded early voting, vote-by-mail, and independent redistricting commissions to minimize gerrymandering, among other reforms. Harris has also discussed improving voter access for Native American communities and was a co-sponsor of the Native American Voting Rights Act when she was in the Senate. She remarked, “Democracy is strongest for our country when everyone participates; it is weaker when anyone is denied the ability to participate.”

During a meeting in February 2024 with leaders on voting rights, Harris dedicated three “National Days of Action on Voting”—Juneteenth (June 19), the anniversary of the Voting Rights Act (Aug. 6), and National Voter Registration Day (Sept. 17). She also announced that federal agencies would undertake various actions during this election year to promote voter registration and education, such as displaying signs with Vote.gov at Social Security offices and National Parks. In addition, those who signed up for health care on HealthCare.gov received follow-up emails about registering to vote.

Ultimately, a Harris presidency would likely push for more voting opportunities through expanded early voting and vote-by-mail, an end to partisan gerrymandering, and the adoption of other election-related policies that could lead to higher turnout. She has long called voting rights a top priority. She would likely use her presidency to push Congress to pass new voting rights legislation to break down barriers and impose more expansive voting rules. She would also almost certainly nominate jurists who would robustly construe the constitutional protection for the right to vote.

Donald Trump

Trump sees things differently. The 45^th president’s record and rhetoric primarily focus on what he and his supporters call election integrity. Yet his view of “integrity” is narrow, used most often to challenge an election result he does not like. State and federal judges—including some of his own appointees—soundly rejected his extensive efforts to seek judicial relief following what he said was a “stolen” 2020 presidential election. He has continued to focus on “integrity” concerns, saying he will only accept the election results this year if there is a “fair and legal and good election.”

He has also addressed election policy during his 2024 campaign. Number 19 on his platform’s list of 20 priorities is to “secure our elections, including same day voting, voter identification, paper ballots, and proof of citizenship.”

The proposal for “same day voting” presumably means that he would seek to restrict early voting and vote-by-mail policies. While Trump used to fulminate against early voting and voting by mail, he has warmed up to the idea in this election season. The audience at his Madison Square Garden rally repeatedly saw “Vote Early” signs on the Jumbotron. If Trump cools to early voting, he would probably face bipartisan opposition. Surveys show that both Democrats and Republicans favor early voting days—though Democrats support it at higher numbers than Republicans do. Views on universal vote-by-mail fall more along partisan lines, with most Democrats supporting the idea and most Republicans in opposition. A recent academic study found that “states with greater usage of mail voting experience higher overall voter turnout.”

Trump’s website also says he wants “voter identification.” Voter ID laws already exist in 36 states, though the specific requirements vary. Trump says he supports stricter rules to reduce voter “fraud.” Studies show that strict voter ID laws can disenfranchise some voters, especially minority individuals and poorer people, while there is virtually no evidence of in-person voter fraud.

Next, Trump’s platform says he wants “paper ballots.” Virtually all jurisdictions already use paper ballots. Presumably, given the lawsuits his supporters have brought, he means that he supports hand counting of ballots. Election officials and experts have demonstrated why hand-counting every vote is a bad idea. The process introduces inaccuracies, as machines are better than humans at rote tasks like counting thousands of ballots. Hand counting could also cause massive delays in reporting results, which might sow confusion or distrust.

Finally, Trump supports requiring voters to provide documentary proof of citizenship when registering for federal elections, urging Congress to pass the Republican-backed Safeguard American Voter Eligibility (SAVE) Act. Earlier this year, he called on Congress not to keep the government funded unless it also passed this law. Congress did not have the votes to do as Trump wished, and it ultimately enacted a funding bill without the SAVE Act. One can presume that the law would be a renewed priority in a second Trump administration—despite the evidence that such a requirement could disenfranchise valid voters who do not have the necessary documents and even though noncitizens hardly ever vote illegally.

A president’s judicial appointees also impact the scope of voting rights. Trump nominated three Supreme Court justices and hundreds of federal judges. Those jurists have generally ruled quite narrowly on voting rights protections, deferring to state lawmakers over the rights of individual voters. For instance, all three of his Court picks—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—joined in a 6-3 decision to limit plaintiffs’ ability to bring discrimination claims under Section 2 of the Voting Rights Act. Similarly, in 2020, the Eleventh Circuit Court of Appeals issued a 6-4 ruling—with five of the six judges in the majority being Trump selections—that upheld a Florida statute requiring people with a felony conviction who had served their time to pay back all “fines and fees” before they regained their voting rights. The decision minimized the reach of Amendment 4, a constitutional amendment overwhelmingly backed by Florida voters in 2018 to restore voting rights to persons who had them taken away because of a felony conviction.

Just last week, three Trump-chosen judges on the Fifth Circuit Court of Appeals unanimously held that Mississippi may not count absentee ballots postmarked before Election Day but received within five days after because federal law requires a single “Election Day” (The ruling will likely not go into effect for 2024.) The decision was contrary to the rulings of all other courts that have considered the issue. We can assume that Trump, in a second term, would appoint similar judges with a narrow view of voting rights.

A Trump White House would also likely alter the federal government’s activities toward voting rights. He could direct the Department of Justice’s Civil Rights Division to change its focus and no longer bring voting rights claims; the Project 2025 agenda (on page 562 of the 922-page document) says that the next president should “reassign responsibility for prosecuting violations of 18 U.S. Code § 24176 from the Civil Rights Division to the Criminal Division where it belongs. Otherwise, voter registration fraud and unlawful ballot correction will remain federal election offenses that are never appropriately investigated and prosecuted.”

As president, Trump could renew his first-term efforts to add a Citizenship Question to the Census, this time for 2030, which might cause an undercount of minority communities and harm their level of representation. He could create yet another voter fraud commission, though his first was mired in controversy and was eventually disbanded after finding no evidence of massive fraud. And he could continue to peddle falsehoods about the security of the election process and cast doubts on results he does not like.

He has even indicated that he would target those engaged in election fraud, posting on Truth Social that “legal exposure extends to Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials. Those involved in unscrupulous behavior will be sought out, caught, and prosecuted at levels, unfortunately, never seen before in our Country.”

This analysis reveals that the two candidates have divergent views of elections and democracy. The fundamental right to vote, the cornerstone of democracy, could look vastly different depending on who wins the election.

We live in a democracy. It is up to the voters to decide which approach is best.

The post On Voting Rights, Trump and Harris Couldn’t Be Farther Apart appeared first on Washington Monthly.

Misinformation and disinformation are everywhere. Some people still think the 2020 election was not secure. (It was.) They believe noncitizens are voting in massive numbers. (They aren’t.) They think fraud is a major plague on our elections. (Wrong again.) Social media exacerbates the problem. AI and deepfakes infect our campaigns. People do not know where to look to find accurate information.

But facts do exist. It’s vital to ensure that voters understand the details about the candidates and their positions so that they can make informed choices when they go to the polls.

That’s where nonpartisan media and civic health organizations come in. They present fact-based reporting on the biggest issues in democracy—such as the Washington Monthly’s extensive coverage of how voting by mail and drop boxes is safe and efficient.

Civic health organizations also offer numerous guides that voters can and should trust, especially to learn what is on their ballot.

The Bolts Magazine “cheat sheet” is a great example. The chart identifies over 500 races nationwide, from the president to local referenda, impacting all aspects of policy and governance. Did you know, for instance, that 11 states will elect Governors this fall? Or that 14 states have important state supreme court elections? There are also statewide ballot initiatives covering issues such as abortion, legalizing marijuana, education policy, taxation, and more. On democracy itself, the Bolts guide shows that several states and localities will decide whether to adopt Ranked Choice Voting for their elections. The cheat sheet links trusted sources that offer facts about these issues.

But maybe you just want to know what is on your ballot. After all, most voters will choose not only the presidential electors for their state but also candidates for a slew of state and local positions. That’s where TurboVote comes in. TurboVote is a project of the nonpartisan organization Democracy Works, which aims to provide reliable and helpful voting information for all voters. Enter your address, and—Boom!—you’ll see every candidate race and initiative on the ballot this year. Clicking on a candidate brings up links to their website and social media pages. This resource is handy as voters research their local races, which often receive less coverage than the federal and statewide elections. There’s even a tool to set up an email or text reminder to vote and to send this information to a friend.

BallotReady is another valuable resource, especially for researching local elections. By inputting one’s address, voters will see all candidates on the ballot, including their background, education, and the key issues underlying their campaigns. There are links to reputable news sources that offer further details about their policy positions. The website also provides this same kind of detailed information on state and local ballot measures.

State and local news organizations can also make a difference. For example, in my home state of Kentucky, public radio stations created a comprehensive voter guide that offers information about each candidate, including a brief biography, their top priority, and key endorsements. Citizens can select the candidates they plan to vote for and bring their printed “cheat sheet” to the polls. The site notes that the public radio stations “believe in the value of local journalism providing accurate information to our readers and listeners.” Similarly, my hometown of Lexington has a nonprofit local civic health organization, CivicLex, that hosts Lex.vote. This website dives deeply into candidates for local office such as city council and school board. (Disclosure: I’m on the board of CivicLex.)

News organizations can also provide easy access to voter registration forms and links to online registration portals as the registration deadline nears. (Although the deadlines have passed in some states, it’s never too early to start planning for the next election.) Media entities can also offer easy access to absentee ballot request websites.

Voters should use these resources, but funding is also required to sustain them. Those who care about democracy should invest in local journalism by subscribing to local news organizations. We can and should trust nonpartisan media; it can serve as the lifeblood of democracy.

Voter education may not be the sexiest aspect of the election process, but it could be the most important. It is especially vital given our social media and AI-based world. Don’t necessarily trust information you see on social media or generated through AI. Do trust the voter guides from nonpartisan civic health entities, especially when they provide citations and links to their sources.

The Declaration of Independence states that a government enjoys its legitimacy from the consent of the governed. That consent should come from all of us based on truthful, verified information.

People often ask me what they can do to help support democracy in these perilous times. One simple answer is to point people—especially those who may not vote—to these voter guides and tell them to look up the races on their ballot. You just might convince them to cast an educated vote.

The post Do You Have Questions About When and Where to Vote, Candidates and Issues Up and Down the Ballot? We’ve Got You Covered. appeared first on Washington Monthly.

Suppose you were to believe the narrative from certain candidates, social media, high-profile lawsuits, and numerous ballot initiatives this year. In that case, you might think that noncitizen voting is a major problem. As with most issues these days, the facts are obscured in favor of false narratives aimed at stirring up a frenzy.

But facts should matter: Noncitizens are not voting in massive numbers, and our elections are secure.

That reality has not stopped those who sow divisiveness and undermine people’s confidence in our elections. The false narrative can also create negative changes in the law that undermine the constitutional protection for the right to vote. We must disseminate the truth so that the American public can distinguish fact from myth.

Federal law already prohibits noncitizens from voting in federal elections. Several state laws forbid it as well. From a practical perspective, it is unlikely that noncitizens will flout these laws purposefully and vote en masse, as they will probably be caught and face both criminal and immigration consequences.

It is true that sometimes, noncitizens mistakenly appear on voter registration lists, usually because they validly obtain a driver’s license, and the lists are copied over to the voter registration database. States routinely audit those lists to remove ineligible voters. And reports of noncitizens on the rolls are almost always inflated. For example, Texas officials likely embellished the number of noncitizens it purged from its voter rolls; news organizations found that the number Texas cited almost certainly included valid U.S. citizens. Alabama’s Secretary of State admitted that his initial allegation of 3,200 noncitizens on the voter rolls was massively wrong—at least 2,000 of the people he flagged were citizens. Of course, people often don’t hear the correction; they only focus on the initial claim.

In 2022, Georgia Secretary of State Brad Raffensperger announced he was referring for investigation 1,634 cases of potential noncitizens attempting to register between 1997 and 2022—a paltry number given the millions of valid Georgia voters. None of those people voted because of the various safeguards in place. Raffensperger noted, “The audit proved that Georgia’s citizenship check procedures are working and are vital to ensuring secure elections.”

Moreover, state and local election officials routinely perform post-election audits to verify the results. They have also specifically looked for noncitizen voting and found hardly any instances of it. Even the conservative Heritage Foundation lists only 21 cases of ineligible voting in its entire “election fraud” database. Numerous other studies also show that noncitizen voting is minuscule.

But the claims persist. A recent survey found that 67 percent of respondents said they encountered information on social media about noncitizen voting, with 77 percent of Republicans reporting that they had seen this content, compared to 63 percent of Democrats and 49 percent of independents who saw it. These false claims will likely be part of any post-election attempt to sow seeds of doubt about the election’s outcome. Maybe that’s the whole point,

Some states have attempted aggressive purges of their voter rolls, only to end up in court. The Department of Justice, for example, was forced to sue Alabama and Virginia for trying to flag potential noncitizens in their rolls too close to the election. Florida sued the federal government, alleging that the Department of Homeland Security had not provided the requisite information for Florida to review its voter registration list. But creating this kind of dispute so close to the election—during the 90 days before Election Day when federal law prohibits voter purges—does little but sow doubt about the voting process. Representative Matt Gaetz of Florida wants to add further uncertainty by introducing a bill that would let states remove noncitizens from the rolls at any time.

Meanwhile, eight states (Idaho, Iowa, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina, and Wisconsin) will vote on ballot initiatives to amend their state constitutions to prohibit noncitizens from voting. These initiatives follow similar measures that passed in 2020 and 2022 in six states—Alabama, Colorado, Florida, Louisiana, North Dakota, and Ohio. The Arizona Constitution also prohibits noncitizens from voting.

The ballot propositions will impose a very minor change in the constitutional language.

Virtually every state’s constitution before 2020 said that “every” citizen shall be entitled to vote. The amendments alter that language to “only a citizen” may vote. But the change is not mere semantics. State constitutions provide much stronger protection for the right to vote than does the U.S. Constitution, especially given the restrictive rulings from the U.S. Supreme Court. Changing the language of state constitutions will water down these vital sources of protection. Already, some state judges are reluctant to apply their state constitutions robustly, preferring instead to follow the U.S. Supreme Court’s lead—even though state constitutions textually and explicitly confer broader rights. Narrowing the protection of state constitutions will give these judges even further reason not to construe their state constitutions as more protective of voters. Refusing to apply the state constitution properly leads to deference to state politicians, who often craft voting rules to help keep themselves in power.

If passed, these “noncitizen voting” ballot propositions will also forbid localities in these states from allowing noncitizens to vote in local or school board elections. A few cities in California, Maryland, and Vermont currently—and legally—let noncitizens vote in these municipal elections. New York City also passed a similar ordinance, but it has been held up in court.

A state constitution that says “every” citizen may vote does not necessarily preclude a locality from legally adding noncitizens to the voter rolls for local elections, as the state constitution is a floor, not a ceiling, of voter eligibility. A change in the state constitutional language to say that “only” a citizen may vote in any elections in the state would outlaw that practice by imposing a strict limitation for all elections. We can debate whether it’s a good idea to let noncitizens vote in local elections, though the idea of federalism would suggest that it really should be up to each city to decide for itself. Moreover, many states considering these ballot propositions already have state statutes that forbid noncitizens from voting in any election, so the constitutional change will have no legal effect. The propositions instead are a solution in search of a problem.

They also create their own problem: fostering the false claim that noncitizen voting is happening. It is not. Perhaps, instead of chasing the boogeyman of noncitizen voting, our elected leaders should focus on improving turnout among the U.S. citizens who routinely do not vote. After all, even in the best years, about one-third of eligible voters do not cast a ballot. If they participate, millions of nonvoters could fundamentally alter our elections. A few noncitizens who might mistakenly end up on the voter registration lists and almost never vote have little effect.

The post Noncitizens Are Not Voting in Massive Numbers appeared first on Washington Monthly.

On Thursday, the Department of Justice unsealed an indictment of Eric Adams, making him New York City’s first sitting mayor to be indicted while in office. He is scheduled to be arraigned on Friday.

The first-term Democrat stands accused of wire fraud, in violation of Title 18, United States Code, Section 1343; soliciting, accepting, and receiving a campaign contribution by a foreign national, in violation of Title 52, U.S. Code, Section 30121(a)(2); and bribery, in violation of Title 18, U.S. Code, Section 666(a)(1)(B). The mayor declares he is innocent and vows to vigorously fight the charges relating to foreign travel, hotels, and other benefits totaling more than $100,000.

What myriad news accounts aren’t emphasizing—and should—is that New York City’s admirable public finance system for city offices laid the groundwork for the federal indictment. Adams, who insists he will not resign, intimated, without proof, that he was a target of the investigation because he had stood up to the Joe Biden administration’s policies toward migrants.

Campaign finance irregularities in Adams’s mayoral campaign 2021 were flagged by New York City’s Campaign Finance Board (CFB), which administers the city’s excellent public finance system. In 2021, Adams, a police officer for much of his career and an elected official, including Brooklyn borough president, ran and won his first campaign for the city’s highest office using public funding. That meant he was subject to CFB’s notoriously rigorous post-election audits to ensure taxpayer funds were appropriately used.

As a publicly funded candidate, Adams needed to account for every cent going into and out of his mayoral campaign. Simply put, the numbers did not add up, with a $2.3 million gap, which is a huge red flag. As the New York Times reported of the audit, Adams’s campaign seemed to have “secret bundlers [and] sham donations.” The Justice Department, in its indictment, accuses Adams of violating the wire fraud statute by getting public matching funds through fraudulent means. While Adams received over $10 million in public financing in his 2021 mayoral bid, only a small portion of that is allegedly connected to straw donor scheme outlined in the indictment.

The DOJ’s investigation of Adams was no surprise, even if the indictment was, given that the feds had seized his iPad and phones last year. In late 2023, the FBI searched the home of an Adams fundraiser named Brianna Suggs. On Thursday, FBI agents searched Gracie Mansion, the Mayor of New York’s official residence, and earlier this year, the FBI took his cell phone and other devices.

The laws Adams stands accused of breaking may sound familiar to those who followed Robert Mueller, the former FBI Director and special counsel who investigated foreign efforts to influence Donald Trump’s 2016 presidential campaign. Likewise, those glued to the trials and tribulations of rapper Pras Michel have heard these charges. As I explained in my book Corporatocracy, Michel was found guilty of violating campaign finance laws during Barack Obama’s administration by helping to funnel foreign funds into the 2012 federal election. Michel has yet to be sentenced.

The ban on foreign nationals making contributions or expenditures is a mainstay of American politics and something every candidate knows. It can be found at 52 U.S.C. § 30121. There is an exception for green card holders who spend money in American elections. However, foreign nationals abroad or those just in the U.S. on a visa cannot lawfully spend money in a U.S. election. Full stop.

The Supreme Court upheld the ban on foreign nationals spending money in American elections in Bluman v. FEC in 2012, involving a Canadian who wanted to spend on independent expenditures. The Bluman case at the D.C. Circuit level was authored by then-Court of Appeals Judge Brett Kavanaugh, who, of course, would be nominated to the Supreme Court by Trump and confirmed by the Senate. Kavanaugh wrote in Bluman:

“The Supreme Court has long held that the government (federal, state, and local) may exclude foreign citizens from activities that are part of democratic self-government in the United States. For example, the Supreme Court has ruled that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools. Under those precedents, the federal ban at issue here readily passes constitutional muster.”

Kavanaugh’s Court of Appeals ruling was affirmed by the Supreme Court 9-0. Thus, if Adams wants to argue that the foreign ban is unconstitutional, the case law is not on his side.

Adams is also accused of accepting bribes from a Turkish official. (The New York Post headline on Friday was “Grand Theft Ottoman.”) The recent example of Democratic ex-U.S. Senator Bob Menendez shows the potency of these anti-corruption laws. Menendez was convicted of taking bribes from Egypt, including in the form of gold bars, no less.

Like any defendant, Adams is innocent until proven guilty. But make no mistake: These charges are as serious as a heart attack. Keeping foreign money out of American politics is a bright line that politicians cross at their own risk. Public financing, with its rigorous accounting, makes such behavior even riskier.

The post The Intriguing Role Public Financing of Campaigns Played in the Eric Adams Indictments appeared first on Washington Monthly.

With a population of 10.7 million, Georgia is buffeted by political crosscurrents and, once again, vulnerable to attempts at electoral manipulation. With 16 electoral votes (the same as North Carolina), it is the eighth most populous state and, of course, a battleground in the presidential election.

The state is changing quickly. Georgia went for Donald Trump over Hillary Clinton in 2016 by a margin of 211,000 votes and narrowly for Joe Biden in 2020, who won by roughly 12,000. The man from Mar-a-Lago always claimed the 2020 election was stolen nationally and in Georgia specifically. He infamously beseeched Republican Secretary of State Brad Raffensperger to “find” him 11,780 votes to put him over the top, a move for which, combined with other Trump subterfuges, the Fulton County, Georgia, District Attorney Fani Willis won a grand jury indictment against the former president. This is the state where Rudy Giuliani lurched into bankruptcy for defaming volunteer poll workers who won a $148 million judgment against him.

Georgia’s more populous counties in and surrounding Atlanta provided the big margins to elect two Democrats to the U.S. Senate, which accounts for the shift—Raphael Warnock, formerly the leading pastor of Martin Luther King Jr.’s Ebeneezer Baptist Church in Atlanta, and Jon Ossoff, a Jewish American who was a documentary filmmaker before winning office.

Conversely, the state has brought us the King’s Fool, Marjorie Taylor Greene, the Republican representative from the state’s overwhelmingly Republican north, and a popular conservative, Governor Brian Kemp, who stood up to Trump’s attempts to reverse the state’s election results in 2020. I’ve seen the state’s red side up close. A friend who owns a quail hunting plantation was an infantry officer in Vietnam. He once told me, “Jim, we could have won that war if they had let us.”

Democrats believe the fight for reproductive freedom can keep the state blue come this presidential election. Before the Supreme Court’s 2022 Dobbs decision overruled Roe v. Wade, Georgia permitted abortions up to 20 weeks of pregnancy. Afterward, it enacted the “heartbeat bill,” prohibiting abortions after a fetal heartbeat can be detected, typically around six weeks of pregnancy. This bill includes exceptions in rare cases where the mother’s life is at risk, severe fetal abnormalities, and pregnancies resulting from rape or incest. Georgia permits surrogacy, but only because its courts have held women, like men, should be held to their contracts.

Amid these roiling waters, last week, the Georgia State Election Board narrowly approved a rule requiring the massive number of counties—159, to be precise, the second-highest number in the nation after Texas—to hand-count the total number of ballots this year, some five million votes. This could upend the November election by delaying the reporting of results and giving those contesting the results an additional reason to charge fraud and sue.

The board’s pro-Trump majority, by a vote of 3-2, changed the election rules despite several objections from officials, commentators, leading Republican state officials, and interested citizens.

The minority argued that the laborious hand count delays the contest, creating uncertainty, especially since it is enacted within 90 days of the election. The critics, including poll workers and election supervisors, argued that hand counts take too long, incur unnecessary expense money, and yield counting errors instead of eliminating them. (Machine counts are generally more accurate.) The Republican state attorney general, responsible for advising the board, ruled that the change was unlawful.

To complicate matters six weeks before the election, the hand count will supplement the machine count not only in each country but also in each precinct. The board does not provide guidance on resolving discrepancies in potentially thousands of precincts.

The hand count is slated to occur the night of the November election or the next day. But dozens of election officials said this would be impossible in all but the smallest counties where voting might have concluded. The principal argument against this is that the ruling is, at this juncture, a Johnny-come-lately, which would require election staff to do something for which they have not been trained and for which they have no money. Even in big counties–Imagine Fulton County, where there are almost a million registered voters–the laborious, expensive effort required for an accurate hand count.

In many cases, the polls are essentially still open when the hand count is required to begin, as mail-in ballots are still coming in. “Military ballots have already been issued,” said Ethan Compton, elections supervisor in southern Georgia’s Irwin County. “This is not the time to change the rules, said Compton, “That will only lower the integrity of our elections.”

The argument for the hand count is that it will make statewide elections secure and transparent. But the MAGA majority that took control of the board in May with the purported mission of preventing fraud and other irregularities from tainting this year’s presidential result seems to define fraud as any electoral decision against Trump. All three voting for the rules are Trump supporters, and the state’s leading proponents of the Big Lie that Biden stole the state’s electoral votes are also pushing the hand count.

Among those voting in favor, Janice Johnston said making sure the number of ballots cast is equal to the number of votes logged by the machines will be established as early as possible so that any discrepancies can be investigated. Actually, the potential “discrepancies” will be found later rather than sooner.

“It’s better to do it at the beginning than to try to do it at the end when you don’t have a remedy if there’s a miscount,” she said.

One of the proposers of the hand count, Sharlene Alexander of Fayette County, told the state board that the rule only requires tallying the number of ballots—to make sure the count matches the machine totals—but it does not require hand tabulation of how people voted.

However, it is incontestable that election offices are still saddled with an unnecessary burden, which would leave the presidential contest in shambles.

And then there is litigation. A federal court precedent recommends a 90-day “quiet period” ahead of elections, during which it is widely considered imprudent to change the rules because of the risk of confusion, error, and insufficient training. Anti-hand ballot forces can rely on the precedent to press their claims, or if the 2000 Florida recount is any guide, attorneys for the same campaign can argue opposite points in different counties, depending on what gives them an advantage. The George W. Bush team were masters at this.

Others warned that, besides the expense and logistical problems of a statewide hand count, requiring poll workers to handle ballots, in some cases multiple times where they find errors, injects a security risk into the otherwise strict chain-of-custody rules surrounding ballot handling.

Saira Draper, a Democratic member of the state legislature and election lawyer from DeKalb County, made an overwhelming case at the board hearing.

“It makes me question whether members of this board are operating in good faith,” Draper said. “Putting 11, maybe 12 new rules into play days before Election Day is a gift. We are setting up our counties to fail. Why do we know they are going to fail? Because they are telling you that.”

Democrats have sued over a rule passed earlier this year that could allow counties to delay certification. A hearing is scheduled for October 1. More litigation is expected.

It has been shown time and again that hand-counting ballots is less accurate than machine tallies and that it can take days, weeks, or months, depending on the size of the jurisdiction.

Most jurisdictions already audit election results by hand-counting a random sample of ballots and comparing the results with machine tallies rather than the exhaustive work of tabulating each and every vote manually. This sampling occurs after unofficial results have been reported, encouraging confidence in the result without the need for total population counting.

Earlier this year, the board passed a rule that critics say could empower county boards to delay certification of results. The rule allows the boards to demand “reasonable inquiries” if they have questions about an election’s outcome.

In a presidential election, the calendar for determining which presidential electors will convene and send their votes to Washington is immutable, with delays in concluding the count potentially derailing the process. This year, electors are due to convene in every state on December 17, a dress rehearsal for counting electoral votes in Washington on January 6, 2025.

Republican Georgia Attorney General Chris Carr’s office also weighed in on Thursday with a formal analysis of the proposal, stating that state law does not permit hand-counting ballots at the precinct level.

Board chairman John Fervier, a Republican appointed by Governor Kemp, voted against the proposal and said he thinks the rule puts the board in legal jeopardy.

The partisan slant of the elections board has upset not only Democratic democracy advocates but also Secretary of State Raffensperger, hailed for his courage in 2020 standing up to Trump, who sent a sizzling letter to the panel denouncing the rules being considered, including one that would require changes to absentee and provisional ballots.

“To underscore the absurdity of the timing of the Board’s actions,” wrote Raffensperger’s general counsel, Charlene McGowan, “[the ballots] have already been printed, and counties will have already begun mailing absentee ballots to voters before any rule change would take effect.”

She added: “It is impossible to implement this change for 2024.”

Former Georgia Republican Lieutenant Governor Geoff Duncan, who has endorsed Kamala Harris for president, was firm in his condemnation: “These guys aren’t interested in winning this election fair and square, and that’s by putting a good candidate forward that can actually win…The only time a Republican loses in Georgia is when Donald Trump puts his fingers on him.”

And Trump, exhilarated by the prospect of manipulating the Georgia outcome, mentioned the three majority members by name at an Atlanta rally as though they were Horsemen of the Apocalypse, calling them “pit bulls fighting for honesty, transparency, and victory.”

He’s right that they are pit bulls. On Tuesday, the board voted to investigate how eight counties—including Democratic DeKalb and Fulton—handled thousands of voter registration challenges launched by Republicans.

Trump has repeatedly declined to say he will accept the results of the 2024 election and has complained of Democratic “interference,” saying he believes the only way he can lose is if the other side cheats.

He ought to know. With him, it’s “heads I win, tails you lose.” 

The post What Is Going on With Georgia’s Board of Elections? appeared first on Washington Monthly.