There has been a stealth revolution in American voting laws and practices since 2016.
Armin Rosen
Illustration: Justin Metz
Democracy, unlike other forms of government, has to win the people’s trust in order to survive. Representative government will prove brittle, hypocritical, and unattractive unless the popular will translates into some observable impact on how society is governed. The system must prove to the citizens that voting is a real and meaningful exercise of political agency, superior to more coercive or chaotic alternatives.
In 2021, I covered the national parliamentary elections in Somaliland, an unrecognized breakaway republic that seceded from Somalia in 1991 at the beginning of that country’s endless civil war. Rival nondemocracies surround Somaliland, a poor and isolated place whose politics are heavily clan-based. Overly enterprising journalists, as well as advocates of reunification with Somalia, are vulnerable to harassment and worse. There is little for a parachuting writer to do in Hargeisa, the dusty, exhaust-choked desert capital, beyond working, sitting in traffic jams, or drinking coffee.
But the country has achieved something astonishing: Even with an ambiguous diplomatic status that mostly blocks its access to the global economy, Somaliland is the only somewhat stable, free, and boring place for hundreds of miles in every direction. In the early 1990s, with much of the rest of the region at war, the Somalilanders founded a political system that clan leaders, former rebels, and the average citizen could all accept, and that no outside forces have ever successfully captured or manipulated.
By the early 2020s, the political system, and the country in general, were established enough to hold semiregular national elections without a looming threat of rapid internal collapse if the vote went poorly. Still, the organizers of that 2021 election grasped that a nationwide vote threatened to introduce a dangerous element of expectation that, if left unsatisfied, would inflame existing clan divisions and sink the internal credibility of Somaliland’s democratic project. In contrast, a well-executed election could win the country years of additional social peace and put off any future slide into chaos or subjecthood.
With these high stakes in mind, the electoral commission allowed for no early or absentee voting in 2021—polls were open for 12 hours on one single day. The government also banned private vehicles in major cities during polling hours. This was officially done out of concern over terrorism, but it also conveniently prevented out-of-control outbreaks of partisan activism, and quashed fraud schemes that involved ferrying the same voters between multiple polling sites. Such a fraud would have been difficult to pull off even without the vehicle ban: In order to participate in the election, Somalilanders had to obtain an identification card from the electoral commission months in advance of the vote. The commission took each new voter’s iris print.
If the average American ever thinks about the Horn of Africa, they likely imagine it as one of those interchangeably poor and faraway places that is many decades behind advanced Western countries like our own. Yet in California, New York, Pennsylvania, and Nevada, it is now possible to vote in person without any form of identification. In Michigan, you can vote without a photo ID, as long as you sign an affidavit saying you don’t have one. Unlike Somalilanders, most Americans no longer have to physically show up at a polling place to vote. Instead they have the choice of filling out and submitting their ballots beyond the observation of election officials, which means there is no assurance that the people in whose names ballots are cast actually signed—or saw—their ballots, voted free of duress or the promise of some benefit, or are even still alive.
The new American voting system is practically calibrated to produce mistrust, and to create broad segments of public opinion that believe the whole thing is fake—regardless of who wins.
In the 2020 election, more than two-thirds of voters exercised their franchise by mail or before election day—meaning that election day itself was a mass civic formality, rather than the deciding event of a long campaign. The same is likely to be true this year. At least 20 states now open the voting more than three weeks before the campaign ends. Fifty days before an election, Pennsylvania begins holding “in-person absentee” voting, where a ballot can be filled out and submitted in a location that does not have poll watchers present or any of the privacy safeguards of a normal polling station. Thirty-six states, including every 2024 swing state in the presidential election, now either have all-mail elections in which a ballot is automatically sent to every registered voter, or no-excuse absentee voting in which any voter can ask to vote by mail for any reason. In a number of states, including Arizona, a voter only has to register as an absentee once in order to receive a ballot in the mail in every subsequent election. According to the National Vote at Home Institute, the eight states with all-mail elections automatically send out at least 77 million ballots each cycle.
The “standards” for the freeness and fairness of a given election are inevitably local. There are no globally accepted rules for how an election needs to work, or specific points of procedure that automatically legitimate the result. “In India, there are 600 million people voting, and often the election officials have to travel for days to get to a particular place where people are voting. What constitutes fairness in that?,” wonders Carl Gershman, the longtime former director of the bipartisan National Endowment for Democracy, which continues to help monitor elections around the world. “Ultimately, a lot of that depends on the particular circumstances, and if the election is accepted as fair by people and if the electoral commission is really independent.”
Perhaps Somalilanders will one day grow so confident in their democracy that they will have elections as enlightened as ours, with inconsistent ID checks, no requirement to prove residency or citizenship, and a nationwide phaseout of in-person voting in favor of absentee ballots which can either be mailed in or else simply dropped off at unmonitored collection boxes. But balloting in prosperous mature democracies often looks nothing like our emerging new system. It looks more like Somaliland.
When I asked Larry Diamond, a Stanford sociologist and founding editor of the Journal of Democracy, which of the world’s democratic systems was the highest-functioning, he offered Taiwan as a candidate. Taiwan has no absentee voting—which, Diamond notes, probably disproportionately affects parties in favor of closer relations with mainland China, which has a large Taiwanese expat population. There is a strict ID check and no early voting. “The polls open at 8 a.m. People line up; they cast their votes in very simple ways, on paper ballots … they deposit them in a translucent box. At 4 p.m. the polls close; the electoral officials empty the ballot box and start counting the ballots.” Officials then record the results of each vote on a white-board in front of monitors from the various political parties. “By 8 p.m. all of the results from the precincts have been conveyed and aggregated and the central election commission announces the results at 8:30. The loser steps out before the cameras at party headquarters and concedes defeat, then the winner comes out and makes an acceptance speech, and by 9:30 everybody’s home in bed.”
That’s about the opposite of how America’s most recent presidential election went.
In 2020, two ostensibly unpredictable and incredibly rare events caused most of the country to break with past experience, wisdom, and practice to create what is effectively a new voting system. Under the pressure of the COVID pandemic, and within the broader context of the supposed civic emergency of Donald Trump’s potential reelection, states across the country rapidly shifted to wide-scale, mail-based voting—changes that often turned out to be permanent once the pandemic ended and Trump was out of office. “We’ve thrown in a lot of liberalization in our absentee system that it wasn’t really built for,” says John Fortier, a senior fellow at the American Enterprise Institute and former director of the Bipartisan Policy Center.
The 2020 vote brought abrupt changes to an electoral system that was already losing credibility. As of 2023, 36% of Americans, including 9% of Democrats, thought that Joe Biden’s election was illegitimate, a slight increase from 2021. Between the 48% who once held Vladimir Putin in some way responsible for Donald Trump’s 2016 electoral victory, the 20% who believed that Barack Obama lied about being an American citizen, the 28% who were not confident that the 2004 election produced an accurate result—perhaps because of concerns over alleged voting irregularities in Ohio, which led 32 Democratic members of Congress to oppose certification of George W. Bush’s electoral college victory over John Kerry on Jan. 6, 2005—and the nearly 40% who disagreed with the Supreme Court’s decision in Bush v. Gore, it’s possible a solid majority of 21st-century Americans have thought that the outcome of a recent presidential election was a lie.
Whatever happens in November, one-third to one-half of the country is likely to doubt the integrity of the vote. Whether these people are Democrats or Republicans, it will be foolhardy to dismiss them as disinformation-addled cranks. A democracy exists in the minds of its citizens, in the intangible shared belief that the political compact accurately reflects some measurable quantity of the popular will. But the new American voting system is practically calibrated to produce mistrust, and to create broad segments of public opinion that believe the whole thing is fake—regardless of who wins.
In 2005, a bipartisan commission led by Jimmy Carter and former Secretary of State James Baker made various recommendations for improving America’s elections. The still relatively recent 2000 presidential contest had ended in a minor constitutional crisis, with the Supreme Court handing the race to George W. Bush by ordering a stop to a recount of confusingly designed ballots in Florida. The 2000 mess revealed numerous flaws in the country’s election administration, but the commission did not recommend scrapping the basic methods of voting that most Americans were used to. Nor did they suggest loosening restrictions on who could vote and how.
The report called for a national voter registration database, as well as “a uniform system of voter identification based on the ‘REAL ID card.’” The dangers of absentee voting were of particular concern to Carter and Baker. “Absentee ballots remain the largest source of potential voter fraud,” the report concluded, noting that “citizens who vote at home, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation” compared to in-person voters, and that “vote buying schemes are far more difficult to detect when citizens vote by mail.”
Mainstream media broadly echoed the conclusions of the Carter-Baker report, which continued to be common wisdom a decade later—especially when it came to absentee balloting. “Votes cast by mail are less likely to be counted, more likely to be compromised and more likely to be contested than those cast in a voting booth,” The New York Times reported in a now-impossible straight news piece in 2012. “The flaws of absentee voting raise questions about the most elementary promises of democracy,” the article continued, taking it for granted that these flaws were real and worth worrying about. Even the “experts” were concerned: “Voting by mail is now common enough and problematic enough that election experts say there have been multiple elections in which no one can say with confidence which candidate was the deserved winner.”
In a country with an accelerating, bipartisan record of distrust in its elections, it would make sense for political leaders and election authorities to revisit the core principles of sound election management. A fair sampling of these principles is helpfully preserved in reports from the Carter Center, the Atlanta-based election monitoring organization formed by the former president known for pursuing good works around the globe. Although it mostly works in foreign countries, the Carter Center has also observed a number of votes in the United States, specifically ones held by Native American communities electing new tribal chiefs. All of the voters in these elections were American citizens, people who judged the integrity of their own communal tally against general American notions of how the machinery of democracy is supposed to work.
COVID and the resulting panic became an opportunity for partisan activists and lawyers to rapidly accelerate changes to American voting practices that were already high up on their agendas.
The Carter Center’s report on a 2011 Cherokee election now serves as a record of what people of goodwill considered commonly accepted American democratic standards to be a little over a decade ago. For starters, Carter Center monitors considered any private collection of ballots, something that is now legal in several large and politically consequential states, to be inherently suspect. “Often, candidates were collecting absentee ballots for voters and returning them to the CNEC [the tribal electoral commission] or the post office to facilitate the process for voters. Such actions are not desirable when ensuring that all ballots are properly handled, received, and counted during an election.” The report notes that “absentee voting removes some of the safeguards that are inherent in controlled, in-person voting environments … the casting of absentee ballots occurs in a largely unregulated environment, outside of the oversight of the CNEC or poll workers. This increases the potential for manipulation.” The 2011 Cherokee election monitored by the Carter Center had at least one huge safeguard compared to most of the rest of the country: All absentee ballots had to be notarized, something that only Missouri and Oklahoma still require.
Like Carter and Baker, the Carter Center monitors treated it as an obviously good idea that voters had to convincingly prove who they were in order to vote. “The election law of the Cherokee Nation requires that poll workers identify voters before they cast their ballot. Such a requirement is in accordance with internationally recognized best practice.” If anything, the tribe wasn’t strict enough in its identification practices, with the report noting there were cases where a poll worker didn’t ask for an ID if they personally knew a given voter. “To ensure consistent application, it would be beneficial if the Tribal Council limited the variety of ways voters can identify themselves—perhaps limiting it to tribal membership card and/or driver’s license, for instance.” In Virginia and a number of other states, a copy of a utility bill or bank statement—documents that any person can obtain—now counts as a valid form of ID at the polls.
An all-mail system in which third parties are often in possession of someone else’s ballots, or where ballot-collecting partisan operatives might frequently be present when ballots are being filled out, is tough to square with the Carter Center’s guidelines, which haven’t actually changed much since that Cherokee election. But U.S. elections aren’t judged by former, commonsense standards for how to hold a credible vote. They’re judged according to the standards of 2020, the nation’s new baseline for sound democratic procedure.
In the last election cycle, which culminated in November of 2020, long-running partisan conflicts about “voter suppression” (Democrats seeking to loosen voting rules) and “ballot security” (Republicans seeking to maintain or tighten voting rules) were supercharged by two black swan-type events that happened to coincide with each other.
The first was the Democratic Party’s decision to treat Donald Trump not as a despicable outcome of the country’s normal democratic process but as a dictator-in-waiting who had stolen the presidency with help from the Kremlin and now wanted to end democracy. These claims succeeded in generating a permanent mentality of existential political warfare among the party faithful, who included most of the country’s elite and institutional leaders. This emergency was in turn used to justify any number of extrademocratic theories and measures—from the promulgation of hallucinatory conspiracies with the help of law enforcement and the intelligence community, to overt attempts to control and censor the news—on the grounds that such excesses were needed to save democracy from itself.
The coincidence of a “turning point” election with the public health panic caused by COVID-19 created a situation in which “exceptions” to existing laws seemed normal and natural enough that a large part of the population welcomed them, or at least treated them as the one-time cost of holding a national election during a plague year. Even Republicans tolerated these changes. The incumbent party was caught off guard by a well-organized and well-funded effort among Democratic lawyers and NGOs to overhaul voting procedures in key states. Donald Trump would later make a host of evidence-free claims about rigged voting machines and other plots by which the election was purportedly “stolen.” Democrats might have shifted the rules of the election in their favor, but they did it through legal means and without Trump and his campaign team mounting any real attempt to oppose them.
The changes to voting laws that happened across the country in 2020 were not simply fear-driven or well-meaning responses to a global pandemic. Rather, COVID and the resulting panic became an opportunity for partisan activists and lawyers to rapidly accelerate changes to American voting practices that were already high up on their agendas. In 2018 and 2019 alone Utah, New Jersey, New York, Nevada, Michigan, Pennsylvania, and Hawaii introduced either full vote-by-mail or no-excuse absentee voting.
Even before this, in a sweeping move toward increasing the federal government’s control over elections, the outgoing Obama administration declared in January of 2017 that election systems were “critical national infrastructure,” joining a list that included banking and sewage systems and giving the Department of Homeland Security broad new oversight responsibilities. For reasons that remain unclear, the Trump administration didn’t reverse the decision, though it could have.
Not that long ago, Americans were used to voting in a physical space where no partisan activism of any kind was legally permitted, maybe an elementary school lunchroom or a library. A voter would receive a single ballot from an election official which they would fill out in a private booth before personally hand delivering that ballot to a second election official. Even before the pandemic, a constellation of nonprofit groups had been pushing for the rapid phaseout of that paradigm, with the result that 75% of Americans now live in states where voting in person is optional.
The target of these efforts was the American democratic system as it was formerly organized. “Democracy is a design problem,” goes the sinister catchphrase of the Center for Civic Design—an ostensibly nonpartisan nonprofit founded in 2013 by an Obama administration alumnus and funded by multiple left-of-center donors that advocates for voting by mail and advises election officials on procedure and voter outreach. Before the 2020 election, The Voter Participation Center convened focus groups to strategize about how to grow the mail-in vote and sent out 15 million targeted ballot applications in swing states. The organization’s CEO, Tom Lopach, is the longtime former director of the Committee for a Democratic Majority and a former national finance chair for the Democratic Senatorial Campaign Committee.
The National Vote at Home Institute, whose board includes Oregon’s former Democratic secretary of state, an unsuccessful Democratic candidate for Maryland governor, a former top-20 donor to Hillary Clinton’s super PAC, and the director of legislative affairs for a U.S. Postal Service letter carriers union, is another barely disguised partisan actor seeking to radically “reform” the American voting system. The institute conducts tax-exempt, nationwide advocacy for a full shift away from voting in person on election day. Amber McReynolds, director of the institute since 2018, reportedly consulted with election officials in Georgia and Michigan prior to the 2020 vote. President Joe Biden nominated McReynolds to the U.S. Postal Service Board of Governors in 2021, and the Senate confirmed her nomination in a largely party-line vote.
In 2020, these groups treated the COVID pandemic as a historic chance to affect what a 2021 Time magazine article called “practically a revolution in how people vote.” California, the District of Columbia, Nevada, and Vermont switched to all-mail voting in 2020; Virginia implemented no-excuse absentee voting, while Maryland started mailing absentee ballot applications to all voters. States expanded the time after election day when an absentee ballot could arrive by mail and still be counted—from three to 17 days in California, from zero to three days in Massachusetts, and from zero to seven days in Nevada. Meanwhile, Illinois, Michigan, Ohio, Nevada, Pennsylvania, Virginia, and Ohio all introduced the use of unsupervised public drop boxes for absentee ballots—in Pennsylvania’s case, the change was the result of a state Supreme Court decision rather than an act of the legislature. Nevada legalized third-party absentee ballot collection, while a number of other states relaxed their existing rules.
On election night in 2020, the stealth voting revolution produced a rollout of results that was unlike anything Americans had ever seen before. When voters went to bed, Donald Trump led in Pennsylvania, Georgia, Michigan and Wisconsin. Five days later, it was clear Joe Biden had prevailed, thanks to a 44,000-vote margin in Georgia, Arizona, and Wisconsin. For the first time in American history, one candidate’s lead in multiple states disappeared over the course of a nearly weeklong vote count, producing an inevitable sense of vertigo and anger among the losers.
Additional novel events proliferated within the vacuum of this unprecedented reversal. There are scant chain of custody records for over 18,000 absentee ballots deposited in 37 drop boxes in Georgia’s Fulton County, the Atlanta jurisdiction largely responsible for Biden’s 11,000-vote victory in the state. Video evidence emerged that on election night, vote tabulation at Atlanta’s State Farm Arena continued hours after county officials said it had ended, meaning that ballots were being counted out of the view of observers from either presidential campaign. Georgia went from rejecting 13,600 absentee ballots during the 2016 election, or 6.2% of the 213,000 returned, to 3,152 out of 1.3 million cast in 2020, suggesting that new, covertly introduced standards were now being applied. There are more and less innocent explanations for all of this—for instance after the 2016 vote, Georgia introduced a “ballot curing” process to allow voters to correct absentee ballots that were undated, failed the signature match, or were submitted outside of a required secrecy envelope, thus lowering the rejection rate. But it is also possible that the state’s more populous counties greatly relaxed their rules for which ballots they would accept, with partisan election officials making these critical decisions.
In parts of Pennsylvania, it was impossible for the losing side to know how judgment calls about counting or not counting ballots were made, or by whom: Election officials barred Republican observers from the convention center where absentee ballots were processed on election night in Philadelphia. Pennsylvania Attorney General Josh Shapiro accused pro-Trump activists of “voter intimidation” for publishing videos of individuals delivering large numbers of completed absentee ballots to drop boxes in the city, an activity that remains illegal under state law (in Pennsylvania it is permitted to mail someone else’s ballot, but not to deposit someone else’s ballot in a drop box). The state then broke with its usual procedure by counting absentee ballots whose outer envelope lacked a handwritten date. Over the five days after election day, Trump’s 70,000-vote lead became an 80,000-vote defeat.
Some of these events were strange enough to merit the attention of sober and serious people, at least temporarily: For instance, the Pennsylvania state Supreme Court ruled in 2022 that undated absentee ballots would not be counted in that year’s election. But much of the time, anyone who points out the various oddities of the 2020 election is now accused of election denial, or a total divorce from reality.
Donald Trump destroyed any real opportunity for a dispassionate look at the 2020 vote, and it is revealing how unserious even the Trump campaign was in handling the overall issue of election doubt in 2020. The incumbent made an increasingly cartoonish Rudy Giuliani the face of his postelection fight, frequently spoke and acted in ways that undermined his own lawyers’ efforts in Pennsylvania and Georgia, spread conspiracy theories about hacked voting machines, and then convinced a hard core of his followers that it was possible to stop the certification of the Electoral College on Jan. 6, 2021, leading to a riot at the U.S. Capitol. Trump himself discredited even the most reasonable questions about the administration of the winnable election he’d blown.
Trump likely wanted to obscure the factual record out of shame at having legitimately lost under 2020 rules, however ad hoc or unfair those rules might have been. Trump’s inability to counter the voting revolution, or to optimize around it, was a failure of gamesmanship born from his own strategic choices. Many of Trump’s most egregious postelection actions make sense only as reflexive psychological reactions to this failure. Trump behaved as if he had been cheated, and he also behaved as if he knew he had actually lost.
In 2023, the Carter Center released an updated edition of its over 300-page manual of electoral best practices. “State practice sources discourage proxy voting but emphasize that if allowed, it must be strictly regulated to protect secrecy of the vote,” says the manual, which also warns against “family and group voting,” a phenomenon that third-party ballot collection enables and arguably encourages. Meanwhile, “resources should be provided for the conduct of an electoral process that is free from interference from any other electoral stakeholders.” In 2020, Mark Zuckerberg alone spent an estimated $350 million to fund public election administration in conjunction with the Democratic Party’s targeting of key states where it hoped to increase the anti-Trump vote. During the 2022 cycle, the Zuckerberg-supported Center for Technology and Civic Life sent another $80 million to county and municipal election offices.
What is striking about the manual is how vastly its guidelines differ from what Americans are now being told to accept as normal. For example, in states including California, Nevada, and New York, it is now legal to possess an unlimited number of absentee ballots without having to explain why you have them or how you got them. Collecting absentee ballots on other people’s behalf—a practice that critics refer to as “ballot harvesting”—is now broadly permitted, even in states where, before COVID, it was defined as a serious crime.
Relatively few of the 2020 voting reforms—ostensibly instituted because of COVID—were reversed when the pandemic emergency ended. Developments like the Pennsylvania ruling to throw out undated absentee ballots in the 2022 election, or Nevada’s reduction of the number of days late an absentee ballot could be from seven to four, proved exceptional. In many places, the rules governing absentee voting actually loosened even more after 2020. America’s voting revolution is accelerating.
Trump’s inability to counter the voting revolution, or to optimize around it, was a failure of gamesmanship born from his own strategic choices.
Among the “policy victories” the National Vote at Home Institute lists in its 2023 annual report are the end of a witness requirement for absentee ballots in Virginia, a no-excuse early mail-in voting law in New York “modeled after a 2019 Pennsylvania law,” progress on a constitutional right to no-excuse absentee voting in Connecticut, and the introduction of a single sign-up for lifetime no-excuse mail-in voting in New Mexico and Maine. In August, The Washington Free Beacon reported that a nonprofit called VoteER, founded by a former adviser to Kamala Harris, was instructing doctors on how to assist their patients at Pennsylvania psychiatric hospitals and other in-patient facilities in voting by mail—which is both a potential abuse of the doctor-patient relationship and a sign of how lax voting norms have become in the country’s most critical swing state.
Whenever a state attempts to revert to its pre-COVID rules it is usually met with a lawsuit, the courts being a comparatively friendly venue for election reformers in places where the state House or governor’s mansion are more resistant to major procedural changes. In June, for example, the Wisconsin state Supreme Court overturned the legislature’s ban on ballot drop boxes. In late August, Pennsylvania’s Commonwealth Court ruled that the statutory requirement to reject undated absentee ballots violated the state’s constitutional obligation to hold “free and equal” elections, a decision applauded by Josh Shapiro, now the state’s Democratic governor. Most often, the courts’ rationale is that safeguards like asking for ID or stricter procedures for the submission and counting of absentee ballots are forms of discrimination that “impact” minority groups in ways that qualify as “voter suppression.” The courts represent the most important and least predictable check on various efforts to reverse the 2020 voting reforms—in a close election, it is anyone’s guess whether a court will defer to a state’s decision to toss absentee ballots that arrive a day late, or force them to count those votes anyway. Election litigation is a major 21st-century American growth industry, with the “after game” becoming an accepted, even slightly banal aspect of major political campaigns.
The Trump campaign has reportedly made “election integrity” a focus of its 2024 strategy. But much like any other aspect of a political campaign, there is no way of knowing whether a candidate’s preparations for dealing with alleged voting irregularities are actually effective until after the vote happens. Charges of “voter suppression” and “discrimination,” whether made in a legal context or not, are among the most common weapons that the voting revolutionaries use against those who desire a return to the pre-COVID status quo. Opponents of Georgia’s 2021 election reform law, which President Joe Biden likened to a return to Jim Crow, whipped up enough outrage to get that year’s Major League Baseball All-Star game pulled from Atlanta. The next year’s elections had the highest midterm turnout in the state’s history, despite the partial restoration of pre-COVID voting rules. The Georgia experience indicated that there is no inherent tension between ballot access and ballot control. Almost no one decided not to vote, or found themselves disenfranchised, once they were required to present a photo ID to obtain an absentee ballot.
The real-life effect of the Georgia law poses the question of why the post-COVID changes became the new baseline for election management, especially given the pervasive doubts about the 2020 results among a stubbornly high percentage of voters. A Center for Election Innovation and Research survey found that 83% of 2020 voters in Georgia “were confident their individual votes would be counted as they intended,” a result that CEIR took as highly positive. But that means 17% of voters weren’t sure if their votes really meant anything, in a state where both Senate elections and the presidential tally were decided by under 2.5 percentage points.
Then there is the issue of how and when election results are announced. “The results of the count should be published in a timely manner,” the Carter Center manual states. A delayed announcement of results is still considered strong circumstantial evidence of a tainted process—one of the early signs of fraud in Venezuela’s recent presidential election was the national electoral commission’s failure to post station-by-station results within two days of the vote. Yet it took four days after election day to determine control of the U.S. Senate in the 2022 midterms, and eight days to determine control of the House. In Pennsylvania in 2020, a 70,000-vote election-night lead for one presidential candidate disappeared when hundreds of thousands of votes for his opponent were recorded over the next five days—which is the kind of event that would not inspire confidence in an election held in Venezuela or anyplace else.
There may be entirely reasonable explanations for the late arrival of several hundred thousand votes for the eventual winning candidate, as well as for how some of those ballot counts reportedly wound up on flash drives. Explanations have proved elusive though, and those who sought to investigate these issues have often been tagged as “election deniers” and chased out of polite society. Lawyers who took on postelection cases for the Trump campaign in 2020 are still facing ethics complaints and even disbarment thanks to developments like the 65 Project, a Democratic strategist-led attempt to sanction lawyers who worked on behalf of the Republican candidate. Meanwhile, the office of the Pennsylvania secretary of state has already cautioned the public that it won’t have results ready this coming election night, while 15 other states, including California, Nevada, and Ohio, will count absentee ballots that arrive more than three days after election day.
The U.S. has also drifted away from the Carter Center manual’s standards for determining who is actually casting a ballot. “[T]he fulfillment of universal suffrage is partially dependent on the success of the voter registration process and suggest that a voter list may be reliably established through a variety of acceptable methods,” the document notes, “including periodic list, continuous list, or civil registry, in order to ensure that the data remains current.” There are multiple states, including Nevada and Pennsylvania, where lawyers representing the Republican and Democratic parties are now battling over whether to meaningfully update the voter rolls in the first place—something that would not be a matter of heated partisan legal conflict in a well-functioning democratic system. In August, Virginia removed 80,000 dead voters and 6,000 noncitizens from its voter rolls, raising questions of what those numbers are like in states that are either legally prohibited from culling their rosters or uninterested in doing so. Around that same time, Texas removed 1.1 million ineligible voters from its rolls, including 6,500 noncitizens.
Since entering office, the Biden administration has acted as if the 2020 voting revolution and its further enshrinement in state laws didn’t go far enough in expanding what they define as “ballot access.” The administration doubled the size of the enforcement division at the Justice Department’s Office of Civil Rights dedicated to “protecting voting rights.” In a speech this past March, Attorney General Merrick Garland said his Justice Department was “challenging efforts by states and jurisdictions to implement discriminatory, burdensome and unnecessary restrictions on access to the ballot, including those related to mail-in voting, the use of drop boxes, and voter ID requirements,” announcing the administration’s intention to use the powerful federal legal apparatus in support of the voting revolution.
In March of 2021, Biden issued an executive order directing all federal agencies to develop individual plans for how they can “promote voter registration and voter participation,” including through “distributing voter registration and vote-by-mail ballot application forms.” The order was strikingly similar to a strategy document published by a left-wing advocacy organization called Demos, whose former president and legal director were each tapped for administration jobs.
Right-wing activists, as well as the Republican-controlled House Oversight Committee, have had notably mixed success in obtaining the various agency plans, though there are signs the order is being used to mobilize the government around registering voters in Democratic-leaning constituencies. The Department of Education issued a “Dear Colleague Letter to remind institutions of higher education of the federal requirements regarding voting that are tied to participation in federal student aid programs; and clarifying when Federal Work Study dollars could be used for nonpartisan civic engagement work.” Evidence has yet to emerge of any federal agency balancing the Department of Education effort by targeting the unregistered in Republican-leaning constituencies, like evangelical Christians or men who buy ammo at rural Walmarts.
Walter Olson, an election law scholar and senior fellow at the Cato Institute, emphasizes that there are almost no recent, provable cases where gaps in American polling practice were wide enough to change the outcome of an election. “I fully believe that rates of voter fraud are very low and have not decided elections of much significance for years,” he told me. But this didn’t mean that unease toward the state of elections is unwarranted.
“One of the reasons suspicions fester is that we can’t get answers out of many of our states for not just a day or two but often longer than that,” Olson said of the lengthening vote counts. The building of a credible mail-based system is undermined by “support for litigation to prevent states from doing state-of-the-art voter roll maintenance. If you’re one of these states trying to make mail-in voting work, also having to put so much energy into defending litigation is not the way anyone would have thought they could get good results.” The speed of recent changes in voting laws and procedures is itself a rational reason for concern. “I do worry that particularly in states that did not have ballot harvesting and developed it in the last cycle,” Olson concluded, “that we don’t really know where it’s heading.”
There are still several entirely plausible nightmare scenarios for this coming November, and they don’t necessarily involve any active, provable fraud. The election could come down to a protracted courtroom face-off over absentee ballots with one or more things “wrong” with them. The campaigns’ lawyers would then squabble over the postelection status of ballots that arrived later than state law allowed, didn’t have a secrecy envelope, didn’t have a postmark, weren’t dated by hand, or were signed illegibly, setting up a potential replay of the 2000 Florida debacle over ballot chads.
If an absentee ballot is mailed outside of its secrecy envelope, does this mean that a voter had been uncareful, or does it mean their vote had somehow been tampered with? Could a signature be unreadable because it’s been forged, or for some other valid reason? The election could hinge on these sorts of judgment calls and the legal battles that come in their wake. “It’s easier to vote in the United States today than it has been at any time in history,” says Derek Muller, an election law scholar at Notre Dame. Some incredibly difficult and divisive postelection scenarios are nevertheless possible. “If you’re challenging signature matches you can’t say abstractly how many ballots should not have been counted,” Muller notes. “The reaction would be: Can you identify those that aren’t actually from the voter? If you’re dealing with a 93-year-old with Parkinson’s who signs with an X but it’s still his ballot, is there anything fraudulent about that?”
In a close vote, the inherent uncertainty of a heavily absentee-based voting system could feed an ugly, dangerous reaction, convincing a campaign and its supporters that election theft is underway. “The more you have an atmosphere in which major figures with huge megaphones preach that elections are rigged and that we haven’t had an honest election in years, the more their followers are more likely to take desperate measures,” says Olson.
The new American electoral system is rife with ambiguities, novelties, and opportunities for consequential error. It is also vulnerable to deliberate abuse. You can be prosecuted for lying about being a U.S. citizen on a voting application, noncitizen registrants are often detected through cross-checks with other government databases, and there is little evidence of decisive noncitizen voting in any U.S. election. But there are also tens of millions of noncitizens in the country currently, some 7.5 million of whom have arrived since the last presidential election. A majority of them crossed the U.S. border illegally. If a mere hundred thousand of them aren’t terribly worried about law enforcement and don’t feel a strong inner aversion to lying—or if a helpful NGO filled out a voter registration form in their name—they could shift the entire American political landscape in a close-enough election. The ongoing legal challenge to Arizona’s requirement of a proof of citizenship to register to vote makes it appear as if influential political actors want it to be difficult to prevent such a scenario.
With the excesses of the post-2020 electoral regime now solidified in law and deepening in much of the country, it is unsurprising that Americans are now looking ahead to a tainted or disputed election. Months before the vote, it is already possible to get a sense of the “desperate measures” contemplated by doom-minded partisans.
The riot at the Capitol on Jan. 6, 2021, was as desperate as measures get, a violent bum-rush to stop the certification of the electoral college. But influential Democrats are thinking even bigger than that, openly discussing the possibility of much more severe violence if the election goes the wrong way in November. “It’s going to be up to us on Jan. 6, 2025, to tell the rampaging Trump mobs that he’s disqualified,” Maryland Congressman Jamie Raskin, one of the Democratic Party’s leading intellectuals, mused during a February panel discussion. Earlier that month, the Supreme Court overturned Colorado’s exclusion of Trump from its ballot. The state had barred Trump over his alleged ineligibility for the presidency under the insurrection clause of the 14th Amendment. If Trump came out ahead in the November vote, the people would then have to step in to correct the court’s failure: “And then we need bodyguards for everybody and civil war conditions all because nine [Supreme Court] justices—not all of them, but these justices who have not many cases to look at every year, not much work to do, have a huge staff, great protection—simply do not want to do their job and interpret what the great 14th Amendment means.” In one of his few interviews since bowing out of the presidential race, Joe Biden suggested there might not be a peaceful transfer of power if Trump lost, appearing to suggest that believers in a stolen election would turn violent or attempt to restore Trump to office through certifying fake vote totals. “If Trump wins, no, I’m not confident [of a peaceful transfer] at all,” the president originally said before correcting himself.
The Democrats’ claim of an active Trumpian threat to democracy, a hot-burning civic emergency with existential stakes for the country, hasn’t lessened since 2020. Last month, the former Clinton administration official and political consultant David Rothkopf reported on a recent Washington, D.C., simulation of a second Trump term organized by the Democracy Futures Project, an exercise that “included former senior officials from the Trump, Obama, Bush, and Clinton administrations; former senators, congresspeople, retired generals, and senior state and local officials from both parties.” In each domestic war game, Trump eviscerated American democracy—as the game’s participants understood it—because his opponents weren’t willing to go far enough to stop him. “Most Americans reject autocracy. But Democrats, independents, and Republicans who respect the Constitution are neither organized to combat a ruthless Trumpian power play nor inclined by temperament to fight fire with fire,” Rothkopf warned in The New Republic. “In the simulations, Team Trump routinely went scorched-earth, while the pro-democracy opposition issued press releases, organized peace concerts, and fretted about the need for consensus and inclusivity.”
For Rothkopf and his high-profile yet anonymous table-top gamers—who likely enjoy a lot more leverage over American institutions than a defeated Donald Trump would—Trump is a threat that calls for something beyond the usual methods of organizing and political persuasion. By summoning the specter of an iron-fisted dictator, a figure markedly different from the bumbler who was barely able to control his own administration, portions of the Democratic Party, including Biden himself, seem to be entertaining scenarios in which they would have to resort to extreme means to preserve the “integrity” of a democratic process whose rules they have radically altered.
There is a whiff of fatalism to all this, as if the rival party and its followers are so eager to burn the country down that they can’t possibly be convinced to trust the electoral process. Returning American voting laws to what they were even a decade ago and bringing them a little more in line with the Somalilands and Taiwans of the world seems a better way toward repairing what has become a gaping breach than openly fantasizing about a future civil war. But this is apparently impossible now.
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