Threats to a Fair Election

Voting in this year’s election is well underway in many states, mostly by mail. So is the worrying over what could go disastrously wrong.

The 2020 election went smoothly: It saw record-high turnout despite the pandemic and only minuscule evidence of voting fraud.

But there are new risks this year. A third of state and local election officials have resigned since 2020. In many states, allies of Donald Trump attack the election system and its workers.

Which potential risks to a fair election in November merit serious concern? Nathaniel Persily, a Stanford law professor who spends much of his time on the phone with election officials, says he’s less concerned about A.I. deep fakes and foreign meddling on social media, which appear to have little impact. It’s also helpful that at least half of ballots will likely be cast before Election Day, providing an early-warning system for some problems.

Persily’s overarching concern is uncertainty on or soon after Nov. 5. If the Electoral College is close, unresolved questions about how to count ballots in key battleground states could cause chaos. For example:

Violence or cyberattacks. A disruption of voting on Election Day can disenfranchise people. The worst problems might include physical threats that shut down a polling place or a counting facility. A cyberattack could also halt or hijack operations, affecting, for example, the election-night reporting system that media outlets rely on. But the effect might be limited by the fact that 98 percent of voters will cast paper ballots, including every vote cast in battleground states.

Interference from partisan poll watchers. Challenges to some voters (for example, about whether their IDs are valid) can deter others, especially if word spreads beyond a single polling place. “The perception of a problem can be as bad as the problem itself,” Persily said.

Weather. Hurricanes in southern states have shut down some early-voting locations and disrupted mail-in balloting. (Florida and North Carolina hadn’t started early voting when the storms hit.) People who fled may not receive mail-in ballots on time or be able to return to polling places.

Different rules for contested ballots. In the swing state of Pennsylvania, 67 different partisan county boards make rules on notifying voters about mistakes on mail ballots and whether they can fix those mistakes. That’s the kind of differential treatment of votes, within a state, that the Supreme Court rejected in Bush v. Gore.

Predictions for the number of rejected ballots in Pennsylvania range from 29,000 to 43,000, based on recent elections. In a very close race, local decisions about which ballots to count would wind up in court, without a pre-established statewide rule for resolving all disputes. Similar issues could arise in other states over how to count mail or provisional ballots.

Slow counting or certification. Delays can create a perception of bias even when none exists. In 2020, election officials warned that reliable results could take days. The same is true this year. One source of delay are laws in Pennsylvania and Wisconsin that bar workers from processing ballots received before Election Day.

Around the country, 35 election officials in battleground states have refused to certify results since 2020, even though they don’t have the discretion to do that. On certification, these officials are supposed to be the scorekeepers, while courts are the referees.

What about Georgia? Yesterday, its Supreme Court blocked the State Election Board, which has a new Trump-aligned majority, from ordering counties to tally ballots by hand to ensure a match with machine totals — a task that takes time and can create discrepancies. The court also stopped the board from allowing local officials to make any “reasonable inquiry” about the accuracy of the count. The ruling curbs uncertainty in Georgia’s counting and certification process.

One worst-case scenario is a presidential contest that comes down to a single state that can be disputed. “I don’t think our political system can handle that now as it did with Bush v. Gore in 2000,” Persily said.

In the end, he views that election as a success. Al Gore conceded. Violence did not erupt. However difficult it was for the losing side, voters accepted the Supreme Court ruling that determined the result. The country moved on to the next election. “This time, the Supreme Court won’t have a reservoir of good will to draw on,” Persily says. “People will retreat into their partisan camps. And I could imagine either candidate refusing to concede.”

For more

• U.S. officials are worried about potential violence against election workers, and Russia is considering ways to stoke protests and violence over the results.

• Republicans have spent millions to persuade their voters to cast ballots early. Early voting data from Arizona and Nevada suggests it’s working.

• Trump repeated dire claims about the stakes if he loses. “They say we may never have an election again in this country,” he told Latino voters in Florida.

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