Here’s what’s keeping America’s elections experts up at night
A bipartisan panel of election law experts is largely satisfied with the integrity of the American election system, but they’re also warning about evolving threats from artificial intelligence, foreign governments and home-grown malfeasants spreading rumors and lies about the process and the outcome of the 2024 General Election.
The panel, a collaboration between the John S. and James L. Knight Foundation and the American Bar Association’s Task Force for American Democracy, was the first in a series of seven online discussions presented for local journalists on state-specific election law issues in battleground states.
The nonprofit Knight Foundation was created in 1950 by the Knight brothers, who had been newspaper publishers. With its multibillion-dollar endowment, the Foundation funds arts, culture and journalism. The ABA’s bipartisan Task Force for American Democracy, chaired by retired federal Judge J. Michael Luttig and former Homeland Security Secretary Jeh Johnson, provides analysis of and proposes solutions to threats to the democratic process.
Another six panels will be held over the coming weeks in Arizona, Georgia, Michigan, Pennsylvania, North Carolina and Wisconsin in anticipation of tight races, but speakers during the Sept. 5 event provided an overview of the challenges and opportunities the nation will face.
“A presidential election is not a single election. It is 10,000 little elections all over the country, in every county and locality all over the country,” said David Becker, executive director of the nonpartisan Center for Election Innovation and Research, which provides free legal assistance to election workers threatened with frivolous lawsuits.
Becker also took a leading role in the development of ERIC, the Electronic Registration Information Center that helps states update their voter records, purging them of people who are deceased or have moved. ERIC had seen broad bipartisan appeal in the past, but recently a number of states have withdrawn from the network, cowing to unfounded conspiracy theories pushed by former President Donald Trump. North Carolina is not a member of ERIC and the General Assembly has staunchly opposed it.
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Ben Ginsberg (left), David Becker (center), Bob Bauer (right). Donated photos
“Our elections right now are secure and verifiable as they’ve ever been, and it’s not really particularly close,” Becker said, explaining that 95% or more of voters will this year use paper ballots that can be audited with a high degree of security. “We should be very proud of our election system and cognizant of the fact that it may be that losing candidates will lie about that election system if they don’t want to accept those results.”
That’s what happened in 2020, but the results of more than 60 cases brought by Trump campaign attorneys alleging improprieties across the country showed no widespread fraud. That didn’t stop fringe groups from continuing to advance bogus voter fraud conspiracies about the 2020 and 2022 elections, including in North Carolina. According to conservative think tank The Heritage Foundation, there have been no dispositions in voter fraud cases in North Carolina since 2022, when five political operatives were convicted of absentee ballot fraud meant to help Republican congressional candidate Mark Harris in 2016 and 2018.
“I’m confident in this because [courts] did this in 2020, they’re going to hold litigants to evidentiary standards,” Becker said. “You can’t litigate these cases and make claims on social media and expect to get a court to rule in your favor if you don’t have evidence.”
Another panel speaker, Ben Ginsberg, posits that there are 12 stages to the election process — pre-election issues like registration, voting issues like the casting of early, absentee or in-person Election Day ballots and post-election issues like tabulation, certification or recounts — and that the nation’s robust, well-designed election system has checks and balances baked into each step.
“In every one of those 12 stages, there are safeguards,” said Ginsberg. “The safeguards themselves are so involved and so complex that we can’t even try to touch on them all.”
Ginsberg, a Stanford law professor and fellow at the university’s Hoover Institution, has nearly 40 years of election experience, represented four of the last six GOP presidential nominees, played a major role in the 2000 Bush/Gore recount in Florida and was appointed by President Barack Obama to serve as co-chair of the bipartisan Presidential Commission on Election Administration.
He’s also a former reporter and opined that as claims of election fraud emerge, journalists should challenge those claims by referring to the safeguards in place that are designed to prevent fraud.
Becker also had some thoughts on what should happen if some of those safeguards are challenged.
“I think one of the first questions people, especially journalists, should ask, especially when lawsuits are filed is, ‘Why now? Why are you bringing this to the courts now?’” he said, suggesting that if campaigns suspect problems with election procedures or administration in particular states, they shouldn’t wait until they lose the election to argue them in front of a judge.
“You can have the best field goal kicker in the league,” Becker said, “but if you lose the Super Bowl by a point, you can’t complain that field goals weren’t worth five points.”
Even still, some folks will, and some may again attempt to interfere with the certification of election results. Supervisors in Cochise County, Arizona, were ordered by a judge to certify the results of their election in 2022 after they voted 2-1 not to, basing their votes on debunked claims about the county’s voting machines. In 2023, the two supervisors who refused were charged with felonies related to their actions. Now, Georgia is trying to make actions like theirs legal.
“I think there’s a larger point to be made here about the threat to public confidence in the electoral process that we have tried to build up since the 2000 presidential failed recount in Florida,” said Bob Bauer, a panelist who serves as co-director of New York University School of Law’s Legislative and Regulatory Process Clinic and was President Barack Obama’s White House counsel from 2009 to 2011.
“Are we going to respect professional election administration, recognizing that mistakes are made?” Bauer asked. “Or are we going to continue down a path where we have massive confusion about the roles of election officials — about the rules that they’re supposed to follow — in a way that ultimately just sort of undermines confidence in that process?”
Bauer explained that laws across the country recognize election certification at lower levels of government as a ministerial, non-discretionary duty instead of an opportunity for political grandstanding or for interference in election administration.
“They don’t have the legal authority to do it because they are not at that point in the process the ones who are authorized by law to make those determinations,” Bauer said. “Their responsibility is to take the information provided, the votes reported up, and ensure that they are certified as the accurately computed outcome of the election, setting up for others the opportunity to review and challenge if they believe there was a mistake in the process.”
Becker singled out North Carolina’s Republican-dominated General Assembly for what he called a “deeply disturbing attempt to politicize and de-professionalize election administration.”
Passed over Gov. Roy Cooper’s veto, the measure would have eliminated five-member county election boards (which always have three members from the governor’s party) and established four member-boards — two Democrats, two Republicans. If there were ever to be a tie vote, on anything from election certification to early voting logistics, the issue would be resolved by the General Assembly.
“That is recipe for disaster, and it was passed right before a presidential election,” Becker said. “Thankfully the appellate court enjoined that, and the state Supreme Court appears not to be willing to take that up before the election. They might take it up afterwards, but that is a great example of a legislative power grab over the nuts and bolts of election, which they are not properly qualified to handle.”
By the end of the two-hour discussion, panelists had spent a lot of time expressing confidence in the nation’s election process and administration, but in response to a question posed by moderator Tracie Potts, executive director of the Eisenhower Institute at Gettysburg College and former Washington correspondent for NBC News, admitted that a few things keep them up at night.
Bauer said his biggest concern wasn’t with the election process itself.
“What worries me the most are stresses that are external to the system,” he said. “We haven’t talked a lot about the role of social media and the importance of being really, really alert … to what is going to start circulating in a world in which images can be manufactured to an astonishing accuracy, or verisimilitude, to seeming reality. Claims can start circulating virally faster than we can catch up with them, and we can be certain that there will be potentially different, more innovative forms of foreign government influence than ever before.”
On Sept. 4, the Department of Justice indicted two Russian nationals employed by the Kremlin-funded Russia Today news outlet with counts of conspiracy related to the Foreign Agents Registration Act by using nearly $10 million to create and publish pro-Russian propaganda on social media channels. Major right-wing influencers appear to have been “duped” into participating, but their rhetoric had long been aligned with Kremlin talking points on Ukraine, Trump and the 2024 election.
As the excitement builds toward Election Day, external stressors will have an effect on voters, Bauer said, and may deter them from participating in the election, leading to a self-fulfilling prophesy that the election was “disastrous.”
“That, by the way, feeds into the potential for violence, feeds into the potential of loss of confidence in the election,” said Bauer.
Ginsberg said he agreed with Bauer on loss of confidence, and added his own concern about disruptions at polling places due to natural disasters.
Becker first offered something he says doesn’t keep him up at night, but ended with a chilling reminder of what does.
“I’m about as confident as I can be that despite all of the efforts that could occur, all of the machinations, all of the lies that might occur between Nov. 5 and Jan. 20, that the person who actually wins the election is going to have their hand on the Bible on Jan. 20,” he said. “What I am very concerned about, however, is that those who oppose democracy have been organizing for four years.”
