Every vote counts in this election
Twenty-eight days to go…
The upcoming presidential election in the US is likely to be one of the closest, if not the closest, in our history. This means challenges, recounts, and accusations of voter fraud are likely to be part of the picture. How will the system handle this? In 2020Joe Biden won the Georgia popular vote by 11,779 votes. This gave him all the Electoral College votes from Georgia. As we all know, Donald Trump tried to persuade the Georgia Secretary of State to “find” 11,780 votes. But the Secretary of State and the mechanisms of the state’s election system pushed back and delivered the state to Biden.
In 2000, George W. Bush won Florida by 537 votes. In this case the Supreme Court stepped in to decide the outcome of the election.
A flurry of challenges to voting practices
According to the watchdog organization Protect Democracy, in the three years between the 2020 election and the end of 2023, state legislatures introduced over 600 pieces of legislation many of which seemed designed to upend non-partisan election practices by encouraging misinformation, disruption, confusion, and manipulation. Sixty-two of these became laws in 28 states.
In March 2024, Republican National Committee Chairwoman Ronna McDaniel resigned, largely due to her unwillingness to take action on supposed ballot fraud in response to former President Trump’s bidding. Her successor, Trump protégé Michael Whatley, with co-chair Trump daughter-in-law Lara Trump, took over with a declared intention to increase “election integrity” lawsuits and monitoring.
Since then, we have seen lawsuits in nearly half the states challenging various aspects of election practice.
Forcing election officials to remove voters from the rolls
An oft-declared area of Republican concern is that election officials are poorly performing the maintenance of voter rolls and allowing ineligible people to remain registered. This tallies with one of Donald Trump’s most common claims: that millions of non-citizen voters are voting in U.S. elections.
In Arizona, Michigan, Nevada, Texas, and Alabama, efforts have been underway to cull voter rolls in ways that have the potential to take the vote away from legal voters. According to the Washington Post, these lawsuits do not offer evidence of large-scale illegal voting. The one in Nevada has already been thrown out.
In Texas in late August 2024, Governor Greg Abbott announced that since 2021 over a million names had been eliminated from Texas’s voter rolls, including 6,500 “non-citizens.” This number included people who had moved, were deceased, or had felony records, as well as the 6,500 “non-citizens.” Of the “non-citizens,” less than a third had actually voted in the past.
Watchdog groups pointed out that both federal and state law require voter roll maintenance, so that this purging is a matter of routine, whereas the governor’s framing of this process as a protection against illegal voting could undermine trust in elections.
A key source of confusion, when it comes to “non-citizens,” is that non-citizens are able to get drivers’ licenses, and so their names appear as “non-citizen” in Department of Motor Vehicles records. So flagging legal voters as “non-citizens” can happen if information is outdated or someone checks the wrong box in error at the Department of Motor Vehicles.
Texas is known to have made errors of this kind before. In 2019, the state cited 95,000 voters as “non-citizens” whereas after review many of the people identified on the rolls were found to be naturalized citizens. The scandal resulted in the resignation of the Texas Secretary of State.
“Releasing these numbers without context is a thinly disguised attempt to intimidate voters of color and naturalized citizens from exercising their rights to vote, which is particularly concerning given the upcoming election,” comments Savannah Kumar, a voting rights attorney with the Texas chapter of the American Civil Liberties Union. Kumar claims that the state invented the issue of widespread illegal voting as a tactic to intimidate people of color from voting, and “we’re seeing now that the state has to resort to spinning otherwise ordinary data to make it look like it’s addressing this invented problem.”
In Tennessee in June 2024, state officials warned over 14,000 suspected non-citizens that they could face penalties for voting illegally, based on data from the Department of Motor Vehicles. In this case at least 3,200 people – around 22% – responded saying they were citizens. Election officials ultimately agreed not to remove the others from the rolls, even if they didn’t respond.
In Alabama on August 16, 2024, the state’s Republican secretary of state, Wes Allen, identified 3,251 people on the voter rolls who had received a non-citizen identification number at one point from the Department of Homeland Security. Acknowledging that some of those people might have subsequently become naturalized citizens, he nevertheless designated all of them inactive voters unless they prove their citizenship, referring all 3,251 to the Alabama Attorney General’s office for further investigation.
A coalition of civil rights groups sent a letter to Allen on 19 August warning him that his actions violated the National Voter Registration Act, the 1993 federal law that sets guardrails on how states can remove people from the voter rolls. The letter says that any systematic efforts to remove people must be “uniform” and “non-discriminatory” and that the state can’t complete any mass removal program within 90 days of an election.
On September 27, 2024, the US Department of Justice sued the State of Alabama and its top election official for allegedly removing voters from its election rolls too close to the November election.
Mailed ballots, drop boxes, and drive-through voting
Meantime, on September 24, 2024, a panel of federal judges heard arguments in a case that could alter the rules for counting mail ballots in Mississippi. The implications for the election tally in Mississippi would be small. But the ramifications for all other states could make this a big issue.
Mississippi law currently allows mail ballots to be counted if they are postmarked on the date of the election or earlier and arrive up to five days after Election Day. Eighteen other states have similar laws. The Republican National Committee, the Mississippi Republican Party, and two individuals are suing in a federal court of appeals to change the law, arguing that votes must be in by Election Day in order to be counted.
Democrats and voting rights advocates say Republicans are looking for ways to throw out valid votes because Democrats have disproportionately embraced voting by mail. Republicans respond that they simply want to abide by the letter of the law and limit possibilities for fraud.
In Pennsylvania, a swing state that could decide the November 5 election, the Republican National Committee recently filed a lawsuit that seeks to disqualify mail ballots when their outer envelopes are not dated or are misdated, even if they arrive by Election Day.
Lawsuits in Michigan and Arizona to limit ballot drop boxes and drive through voting grow out of a common Republican complaint that in 2020 election rules were changed to accommodate needs during the pandemic. The lawsuits argue that such practices do not conform with state election manuals setting out rules for administering elections. The Arizona suit has already been thrown out. The Michigan case is still making its way through the courts.
Gates McGavick, senior adviser to Republican National Committee Chairman Michael Whatley, dismisses criticism of this and other suits. “The idea that widely-supported election integrity safeguards somehow constitute ‘voter-suppression’ is a far-left conspiracy theory,” McGavick said in a statement.
Absentee voting
Other suits pertain to rules around absentee voting.
In Michigan, the Republican National Committee has claimed a victory in a case over the rules governing the verification of signatures on ballot envelopes.
Although Michigan’s Secretary of State Benson has said the suit will not appreciatively change the way clerks validate signatures, the election watchdog group Protect Democracy suggests that the ruling could have an effect on election workers, who may now reject more ballots unfairly. Protect Democracy bases this possibility on a comparison it ran of the Georgia general election in 2020 and the two U.S. Senate runoff races the following January that showed a rise in rejected signatures that researchers attributed a spike of misinformation, largely coming from Trump, about how much cheating occurs among voters using mail-in ballots.
The special case of Nebraska
A related, but also unique, case of attempting to alter election practices has arisen in the state of Nebraska, which is one of only two states (the other is Maine), where the Electors for the Electoral College are allocated proportionally to the popular vote in the state, rather than according to the winner-take-all practice embraced by all other states.
Nebraska, which has five electoral votes, generally goes to the Republican Party in the popular vote. But Nebraska’s constitution stipulates that if there is a single Congressional district that goes to the Democratic Party, then one Electoral vote must be allocated to a Democratic Elector. Traditionally, Nebraska’s Second Congressional District has gone to the Democrats, and is likely to do so again this year.
Donald Trump and his supporters recently tried to persuade Nebraska Republican Gov. Pillen to call a special legislative session to change this allocation of Electoral votes. Pillen agreed to do it if he had the votes. But Republican State Senator Mike McDonnell refused to go along with a change before the 2024 election, killing the plan. McDonnell asserts that if Nebraska’s Electoral system is to be changed, this should happen through a state-wide process and a constitutional amendment.
Changing the way Nebraska participates in the Electoral College could have decisive impact on the November 5 election. If Vice President Harris were to win the so-called “Blue Wall” states of Pennsylvania, Michigan and Wisconsin, she would need only one more Electoral vote to reach the required 270 Electoral votes she needs to win. Without that one vote, the election would be tied. In that case, the House of Representatives elects the president, with each state’s delegation getting one vote. Because Republicans generally control more state delegations, a vote in the House of Representatives would very likely go to Donald Trump.
