Historically Speaking: Election Challenges Ahead

By Will Bellaimey with Elizabeth Gracen:

I sat down for the latest in my series of conversations with Will Bellaimey just a few days before we learned of the death of Justice Ruth Bader Ginsburg. Clearly, the loss of this liberal icon will have a huge effect on the future of the Supreme Court and the country and will add even more stakes to an already critical election. So we got right into talking about issues surrounding the vote.

Make sure and check out Will's entertaining and informative podcast, All The Presidents, Man.

EG: Will, times are fraught at the moment. Everyone is worried about so many things, but the anxiety that our elections are in jeopardy is a big one right now. And I wanted to talk about this whole idea of voter fraud. It has been floated for as long as our current president has been in office.

WB: Yes, beginning in 2016 when he claimed that millions of people who weren't supposed to vote voted in that election—which there's no evidence to support. But it’s not a new idea. So I feel like actually maybe the better way to start this conversation is to talk in theory: How would it be possible to steal an election? How would you do it? Democrats or Republicans or any group of people.

EG: Sounds like a good place to start. How would you go about stealing an election?

WB: I would say there are basically four ways. Of those four, I would say that voter fraud is probably the hardest one to pull off. So, the first way that you could do it is prevent people from voting for your opponent—and that's what we would usually call voter suppression. So any method that prevents people from actually getting to vote—and there’s all sorts of methods that we all know of from the Jim Crow south that were used to prevent Black voters from voting.

Image: John Delano

EG: I’m thinking of the Ku Klux Klan.

WB: Yes, there was just straight-up intimidation and violence from the Ku Klux Klan, and there were also strategies like the grandfather clause that said you were only eligible if your grandfather had voted. And then there are tests or poll taxes associated with voting. There's a long history of it being used specifically to suppress the Black vote.

EG: What kind of voter suppression do we see today?

WB: The main methods that are used to suppress the vote are adding restrictions that make it more complicated to get registered for the disenfranchised people in certain specific groups. It's a lot easier to suppress the vote of people who are poor and who lack access to governmental institutions. Voter ID laws are often a method of voter suppression. It’s not always obvious to people why having a photo ID requirement would suppress the vote, but a metaphor that I like to use is TSA PreCheck. If you think about TSA PreCheck, some people have it and some don’t, and usually I would say the people who get TSA PreCheck are more likely to be people who fly a lot, are more likely to be wealthier, and usually have the time to sit and go through that TSA PreCheck sign up. I have not gotten TSA PreCheck yet. And my sister in law, who's a businesswoman who flies a lot, is always making fun of me for being stuck waiting in the line.

EG: I went through the whole process of getting it when I traveled abroad a couple years ago. It really did take some time to get it all done.

WB: OK, so let’s say that we made a new law that said you had to have TSA PreCheck to vote. Technically TSA PreCheck is available to everybody, but it would very quickly suppress a lot of voters. And it would be most likely poor people. People who don't fly as often, people who just didn't have time or who didn't know about the TSA PreCheck program. And while a lot more people have a photo ID than TSA PreCheck, there are a lot of states and a lot of communities where there are plenty of people who don't. And it's usually poor people, and it's more likely to be people of color. So if you're trying to prevent poor people or people of color from voting (and if you're the Republicans, those are people who are likely to vote for Democrats), then voter ID is a great way to do it.

EG: So is that a law in the United States right now?

WB: In many states, yes. Many states have passed voter ID laws. In particular, this has happened since the decision in a case called Shelby County v. Holder—a Supreme Court case. During the Obama administration, there was a challenge to a provision of the Voting Rights Act, which was passed in 1965 to kind of deal with a lot of these Jim Crow/voter-suppression tactics. And one of the things that people recognized at that time was that voter suppression tactics can succeed just for a couple election cycles, and then you can put a different one in place. So, even if you could challenge one of these in court—like the grandfather clause—the lawyer would tell you that a case like that's going to take years to get through the courts. By that time, a couple of elections go by. So, one of the things they put into the Voting Rights Act was they said in certain states and counties where there's been a history of voter-suppression tactics, the local election officials have to check with the Federal Justice Department any time they are going to change their election rules. So, basically you go from a default system where you can change it, and it'll take a really long time to challenge it, to a default where you keep the system in place until you can prove that it's not racist or that it's not suppressing any group's right to vote. But by a five to four majority, the conservative Supreme Court in Shelby v. Holder said that this was created to solve a problem that is no longer an issue. And part of their argument was that there was a Black president selected, therefore the issue of racism was no longer a problem.

EG: Whoopee! No more racism! That is just ridiculous.

WB: They gutted that part of the Voting Rights Act, and as soon as that decision came down, quite a few states moved to pass new forms of restrictions that would suppress the vote. Without Justice Department oversight, there wasn't anything that Attorney General Eric Holder could do. Going into this election, I think that understanding this form of voting issue in this country is the most important. Another point worth noting is the disenfranchisement of felons in many states. People who have been incarcerated are disproportionately likely to be Black and Brown and are not allowed to vote in many states.

EG: They just passed a law in Florida regarding felon voting rights, didn’t they? They have to pay off all the financial obligations associated with their case before they can vote?

WB: Right, that’s an attempt by the Republican state legislature to reduce the impact of a voter initiative in 2018 that gave formerly incarcerated people the right to vote.

EG: What are some other ways the vote is suppressed?

WB: The second tactic would be voter fraud—which is basically having people who are not eligible to vote, vote. So, not getting people to the ballot box is one thing, and the other is getting ballots in the ballot box that shouldn't be there. It is actually a much more difficult strategy to pull off. You have to come up with people who aren't eligible to vote and then get their ballots and then get them in there. It has actually happened, but never on anywhere near the scale of voter suppression. Voter suppression disenfranchises tens of thousands if not millions of people a year.

EG: So, what are the numbers associated with voter fraud?

WB: We've never seen an example of more than a thousand votes that could be confirmed, and that number actually came in 2018 from a scheme to stuff the ballot boxes in North Carolina. It was carried out by Republican operatives, and it was a pretty sophisticated scheme that involved getting absentee ballots from people's mailboxes before they filled them out and filling them out and turning them in. It did change the results of the election, because it was less than a thousand votes—but they caught it. And the guy who benefited from it had to resign, or give up his election. So, that's an example of a pretty sophisticated voter fraud scheme that you could imagine someone trying to pull off, but it is difficult to do.

EG: Are there any more examples of voter fraud?

WB: There are examples of people making mistakes and voting when they actually weren't eligible. For example, if somebody who's a felon votes and they managed to fill out the forms and the system doesn't catch it. That is a form of voter fraud, but it's not part of some scheme. And it raises the question that in an ideal world, would that person just have the right to vote?

EG: I guess I was thinking more about the stories you hear about dead people voting or undocumented immigrants voting.

WB: There are very few examples of that happening in any large numbers. People do point to the Kennedy vs. Nixon election in 1968, where Kennedy won Illinois by a pretty slim margin. Mayor Richard Daley was part of an enormous Democratic political machine that did all sorts of corrupt things in Chicago, so it certainly wouldn't have been out of character for him to rig that election. There were a lot of claims about dead people voting in that election, and some of those were confirmed.

EG: I've been watching a Frank Sinatra documentary series and just saw an episode about Sinatra’s involvement with the Kennedy campaign and Sam Giancana’s involvement.

WB: Chicago is famously one of the most corrupt systems, and within machine politics, which was generally a Democratic operation in many big cities, there were all kinds of stuff like vote buying and forms of bribery that really did rig a lot of city elections. In the case of the Kennedy vs. Nixon election, it's not actually clear that some of the shenanigans that went down decided the election. Historians have gone back and argued that even if Nixon had won Illinois, Kennedy still would've won the electoral college. And it's not clear that even the margins within Chicago that determine this were the result of fraud, when you compare the numbers to previous elections. It seems more likely that the reason Kennedy won when Eisenhower and some other Republicans had in the past was because there was a huge Catholic population that was excited about the first Catholic president. Now, none of this is to say that voter fraud is something that doesn’t happen, but it happens in such small numbers that it's so much less likely to change the outcome of an election. If you were trying to rig an election, I would not recommend that strategy. It's probably not going to work. Voter suppression is much more effective.

EG: Anything else?

WB: The other strategies would be tampering with the counting of votes and legally challenging votes. I think those are also potentially more effective than voter fraud. And all of it should both be considered as we go into this really contentious election season.

EG: What about mail-in ballots? That dominates the headlines and airwaves these days. Trump is constantly trying to cast doubt on the vote-by-mail process.

WB: All of the studies suggest that voter fraud to the extent that it does occur does not occur at any higher rate with absentee ballot than within in-person voting. That North Carolina scheme did involve absentee ballots, and obviously there are specific challenges to conducting a vote by mail—a lot of them having to do with the post office. For instance, postmark rules. You do want to make sure people can't mail in their ballot a week after the election, but there is a question of if you put it in your mailbox before the election, and then it doesn't make it in time, how do we decide when the cutoff is? That's a big debate that's happening right now.

Image: Timothy Valentine on VisualHunt.com

EG: Do absentee ballots favor Democrats? I know I hear that in the news.

WB: Because of some of the same reasons that I described about voter suppression, absentee ballots have historically favored Democrats. It tens to be older or younger voters, or they could be poor Black and Brown voters. In California in 2018, on election night, they counted all the ballots that had come in person, and it showed in Orange County and other places where there were close elections that the Republicans had held on to those House seats. Then, when they started counting the absentee ballots, the votes started to swing in the other direction. Young Kim from Riverside County was actually in Washington, D.C., already as a freshman Republican House member doing her orientation when they had to call her back because it turned out that her opponent, Gil Cisneros, won the election.

EG: I’ve heard this scenario played out in the media as well in regard to the upcoming election.

WB: I think that's an important factor for everyone to know as we get ready for this election, because in states where there's a combination of absentee and in-person balloting, the likelihood is that the balloting of the in-person votes will be counted first. That will probably lead to early election returns that appear to favor the Republicans. That is why everyone's been talking about the idea that it's going to be “election week” not “election night” as these huge numbers of absentee ballots are counted. You'll probably see a swing in the other direction. That leads to all sorts of opportunities for President Trump and others to throw doubt on the outcome, to tell everyone that the election is being stolen, to just create a lack of legitimacy in the balloting.

EG: Can anything be done to avoid that potential scenario?

WB: One of the things that a lot of states could do to try to make that less of a problem would be to just make it easier to count the absentee ballots earlier. In Michigan right now, there's a conflict going on over when ballots can be processed and counted. The current Michigan law states that you can't even open the envelopes until election day. I know it sounds like a small thing, but when you're talking about millions of ballots, all those envelopes with poll workers will take a long time to open and process. Currently there is a Democratic Secretary of State in Michigan, and there has been a bill introduced by a Republican member of the state legislature, who herself was a former Secretary of State. As we’ve discussed before, the Secretary of State at the state level is usually the name for the election supervisor within the state (even though, at the national level, it's like the person who goes and talks to Kim Jong Un or whatever.) At any rate, this Republican legislator introduced a bill that states that they should be able to open all of the envelopes and stack them and have them ready to go into the machines on election night. At first, the Republicans in the state legislature were not going to vote for it, but they've received so many complaints from local poll workers who are concerned about handling this that they've decided to take up the bill—and it looks like it's going to pass. So that can make a difference in counting those ballots more quickly, which in turn will shorten that period of uncertainty, which is likely to be a very chaotic period in our democracy.

EG: But, that’s only one state!

WB: I don't know what's going on in all the other states. I think the most important thing for people to understand about voting and ballots is that every state and every local precinct has its own practices. This is both a tremendous weakness and a technical strength of our system. It's a weakness because it leads to so many different ways of doing things that it opens up the opportunity for all sorts of shenanigans to go down. All it takes is a couple of local officials to mess it up, and as we all learned in Florida in 2000, those differences can really throw off the whole system. And as we discussed, it also opens up all sorts of opportunities for disenfranchisement. But it's a technical strength in that it does make it more difficult for a national figure bent on rigging the election to systematically take that action, right? There’s nobody directly under the president who controls the local elections. So, for this election, the way in which local Republican officials act will be a huge factor in how the elections are carried out. I would say that story that I just told about Michigan, while anecdotal, suggests that even some people who probably support President Trump may not want to be embarrassed by being seen as the people who mess up the election. Therefore, they may be willing to take steps to try to have a more orderly process. I think that, most likely, the big conflict on election night will be about counting the ballots, which in some ways is a pretty simple action. We just want all the ballots to be counted fairly.

EG: And those are counted by poll workers, people who've signed up and have been approved?

WB: Well, as with all these things, it depends on the state and the local area. There are precincts where the votes are counted by hand. They report those numbers to the office of the Secretary of State, who then compiles it for the entire state. There are also many places where there are electronic voting machines, which are certainly capable of being tampered with through hacking and those kinds of things—and that has happened in the past. And there are places where there are optical scanners—which are more helpful in a recount. But usually even within a state, there are different methods in different places. Again, as we learned in Florida in 2000.

EG: The hanging chads!

WB: In the California primary, you make your selection on a screen, but then a paper copy of your ballot is printed. You check it, and then you put it into a box. In some ways that's the best of both worlds, because it allows for the speed of counting of electronic voting, where it's all counted right away, but also you have a paper trail in case there's a problem.

EG: And how many states have that type of system set up?

WB: In many cases, it’s not even state by state, but county by county. I believe that that system is in place in L.A. County, but not in every county in California.

EG: Will you be voting by mail or will you be voting in person?

WB: I plan to vote by mail, and I would encourage anyone who can vote by mail to do so. Early if possible. We just want to make sure that they're in place by election day. If you got sick on election day, not only is it dangerous with COVID, but literally anything could happen to you on election day. So the sooner you can get your ballot in, the better. I believe that California is going to mail ballots to everyone regardless. And then you have the option of sending it in or not. So again, in a state where the Democratic party generally has an incentive to have as many people vote as possible, they're making it very easy to do so.

EG: I’d say that I’m not feeling particularly optimistic about a peaceful election and transition if Biden wins. How are you feeling? Are you feeling anxious?

WB: Absolutely. I think it's going to be very chaotic. I guess when I talk to people, I think there's a lot of vague anxiety, but I think my anxieties as somebody who thinks about this, are a lot more specific. And I think we have real reason to be afraid of some very specific things, because of some of the issues that I’ve outlined. I also think the whole thing is going to play out in the media, because regardless of the election result, there's going to be a whole question of legitimacy. A lot of that will turn on the fact that people don't actually understand how voting works.

EG: Okay, so we’ve talked about voter suppression, voter fraud, tampering with ballots

. . . is there anything else to consider?

WB: There is one more consideration—legal challenging of the ballots. If we get into a recount situation, which I expect we will in several states, then there will be whole teams of lawyers who will be in place ready to challenge the legality of certain ballots. I worked as an intern in 2008 on Al Franken's campaign, and that election ended up in a full recount. It was ultimately decided by less than 250 votes, even closer than Florida in 2000. The whole thing led to a situation where there were two teams of lawyers where they would literally put ballots up on the big screen that were questionable. The lawyers would make their arguments from each side about why it should or shouldn't get in. In Minnesota, Mark Ritchie was the Secretary of State (a Democrat), and he generally handled it in a pretty calm, systematic way. Many people actually looked at that recount, even though it took forever, as one that was handled pretty well. It just takes a long time. To give you an example, in the Franken recount, there was a ballot where I believe the person voted for Al Franken and then in the write in space, they had written the words “Lizard People.”

EG: Those damned Lizard People. They’re everywhere.

WB: They had to argue the ballot. Did the person mean to vote for Al Franken? Did they mean to vote for Lizard People? Did they mean to say that Al Franken was one of the Lizard People? So, this silly thing that some person did ended up being like a really important question. There could also be a circumstance where you might circle something wrong or you accidentally vote for two different people. Those things do happen. So, if you're a good political campaign, you have lawyers ready who are going to challenge every single ballot that looks like it's going to help your opponent. Both Joe Biden and Donald Trump will have lawyers ready to do that.

Al Gore

EG: I recently read that Biden has assembled quite a team for that exact purpose.

WB: I don't think that anybody is going to let this one go the way Al Gore let it go. In 2000, the Gore campaign fought it for a while, but ultimately not all the ballots were officially counted. So, I guess if I can say something to people who are feeling anxious out there, it would be to remember that what we're fighting for is for everyone to be able to vote and for all of the ballots to be counted. And I think many Democrats feel pretty confident that if all the ballots are counted, that will generally favor Biden in a lot of states. So remind yourself that that's really what we're trying to do, and that it's actually a thing that can be done. You know there are pieces of paper, and we have to count them.

EG: Pretty black and white in that regard.

WB: Surrounding that fight will be all sorts of outrageous claims—particularly if it seems that Trump is going to lose or that the vote has been rigged in some way. And it's certainly possible in that moment that we will face massive protests and that there will be violence around all of these issues. But, the call will be to count the ballots.

EG: In the swing states, these pivotal states, is the Secretary of State a Democrat or Republican?

WB: In a lot of key states such as Michigan, Pennsylvania, and Arizona, I believe they elected a Democrat into that position. There are also states such as Wisconsin, Michigan, and Pennsylvania that have Democratic governors. But even after the recounts are finished, the other thing people should be prepared for is a debate over the final formal step, which is the certification of the election results. And traditionally, the way that the system works is the Secretary of State compiles all of the votes and certifies that they believe that these votes have been counted correctly. Then the state legislature certifies the state slate of electors, who are supposed to bring that result to the official meeting of the electoral college. And the governor is supposed to sign off on that, too. But in Michigan, Pennsylvania, Minnesota, in a number of states, you have a split where the state legislature is in the hands of Republicans and the Secretaries of State and governor in the hands of the Democrats. So, what you could see is a count that is overseen by a Democratic official—who I could imagine doing it wrong or doing it right. But either way, if they end up trying to certify the election for Biden, then there could be a motivation for Republican legislatures to not certify those results. That's what happened in 1876.

EG: What the hell happened in 1876?

WB: In 1876, Samuel Tilden was running against Rutherford B. Hayes, and this was the first election to be held with the Southern states that had seceded being fully brought back into the electoral college. There were multiple layers of confusion and corruption and shenanigans going on. There was the rise of the Ku Klux Klan and other organizations very directly suppressing the Black vote, even after the passage of the 15th Amendment. Massive intimidation, violence, and all sorts of methods were used to keep Black people from voting in 1876. Those Southern states reported their results, and it was a very close election, but it seemed pretty clear that Tilden had won. Tilden was the Democrat who, although he was from New York, would need the support of the South to win and the support of the white supremacists as a result. He definitely won the popular vote, and it's pretty clear that he would have won the electoral college under most circumstances. Republicans, who had just fought the Civil War against these people and didn't think that they were acting in good faith, moved to steal the election in their own way by having separate slates of electors certified and sent to Congress. So what ended up happening in Congress was that the electoral college was sent two different sets of papers with different results—both of which were fraudulent in their own way. One was fraudulent because there was massive voter suppression and intimidation, the other was basically a coup in response to that. And it went on for months into March of the following year—at the time, inauguration was in March. Ultimately, it had to be settled by a bipartisan commission where they basically struck a deal where the Republican Rutherford B. Hayes was allowed to become president. The Republicans, in turn, promised to remove all troops from the South and basically sell out African-American voting rights and civil rights for at least a generation. So, in return for one now not particularly memorable president, the South got a lot. I don't know if that part of the story is necessarily relevant for us. I don't imagine that there's almost anything that the Democrats are willing to trade in return for a Trump presidency or vice versa, but I think the situation where different parties control different parts of the state system, and therefore have conflicting claims to legitimacy, is one that we could very well find ourselves in. In this case, instead of Ulysses S. Grant being the president overseeing it (who was a Republican but not a candidate for office), we'll have Donald Trump.

EG: It just all sounds like a hot mess.

WB: Definitely a hot mess coming down the pipe. People, get ready.

Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.