NEW YORK, NEW YORK - APRIL 15: Former U.S. President Donald Trump appears ahead of the start of jury selection at Manhattan Criminal Court on April 15, 2024 in New York City. Former President Donald Trump faces 34 felony counts of falsifying business records in the first of his criminal cases to go to trial. (Photo by Jabin Botsford-Pool/Getty Images)

NEW YORK — The trial of former President Donald Trump kicked off Monday in a lower Manhattan courtroom, marking the first time in U.S. history that an ex-president has been tried on criminal charges.

Trump, the presumptive Republican nominee for president, appeared in the state of New York courtroom, where he is charged with falsifying business records to conceal a sex scandal involving a porn star.

The case, brought by Manhattan District Attorney Alvin Bragg, is one of four state and federal indictments the former president is facing. But because of delays in the other cases, it may be the only one that goes to trial before the November election, significantly boosting its potential political impact.

Jury selection began Monday afternoon, and is expected to last around two weeks.

But before potential jurors were brought in to the courtroom, Justice Juan Merchan announced rulings on several motions.

Merchan said he would reject a motion from Trump’s defense team which cited alleged conflicts of interest involving the judge’s family and asked him to step down from the case.

“There is no agenda here,” Merchan said, adding: “We want to follow the law. We want justice to be done.”

But Merchan said he would not allow the prosecution to introduce evidence about allegations that Trump committed sexual assaults, calling the claims “rumors.”

Bragg’s team wanted jurors to hear the claims, made in the leadup to the 2016 election, to bolster their case that Trump schemed to hide evidence of an affair, because he was worried about losing support from women voters.

Merchan also said he would not allow the jury to hear the “Access Hollywood” tape, but that prosecutors could introduce into evidence comments made by Trump and caught on the tape. In the recording, which emerged shortly before the 2016 election, Trump brags about grabbing women’s genitals, adding: “When you’re a star, they let you do it.”

Prosecutors asked Merchan Monday to fine Trump for violating an April 1 gag order imposed by the judge. In recent social media posts, Trump attacked Michael Cohen, his former fixer, and the porn star Stormy Daniels.

Merchan said he would hear arguments April 23 on that issue.

Cohen, a former lawyer who has fallen out with Trump, is expected to be a key witness in the case, and Daniels also may testify. Defense lawyers have not yet said whether Trump will testify in his own defense.

Payments to Daniels

At the center of the case are payments totaling $130,000 to Daniels, made by Cohen in the closing weeks of the 2016 election campaign. Cohen admitted in his plea deal the payments were aimed at buying Daniels’ silence about an affair she says she had with Trump a decade earlier.

Trump faces 34 felony counts, and he could face a maximum of four years in prison if convicted. But Merchan also could sentence him to probation without prison time.

Legal experts have noted a major challenge facing Bragg: In New York state, falsifying business records on its own is a misdemeanor, not a felony. But it becomes a felony if the falsification was done to conceal another crime.

Bragg alleges that Trump intended to conceal state and federal campaign finance violations. The payments, prosecutors allege, were illegal and unreported donations to Trump’s campaign, because if Daniels’ story became public, it could have damaged Trump’s image when voters went to the polls.

Bragg also alleges that Trump intended to conceal a tax crime stemming from how Cohen was reimbursed for the payments to Daniels.

Prosecutors don’t need to prove beyond a reasonable doubt that Trump committed these alleged underlying crimes. But they do need to show that Trump intended to conceal them — something defense lawyers are expected to strongly contest.

Political effect

The most important impact of any Trump conviction could be political. Most polling averages currently give Trump a very slim lead over President Joe Biden. But there is some evidence that if Trump were to be convicted of a felony, a small but significant slice of the electorate would be less likely to support him.

Though the charges in the case may seem simultaneously salacious and dry — prosecutors will present reams of sometimes arcane corporate documents — democracy advocates say it in fact involves important principles, and centers on a scheme to undermine a fair election.

“This is not a case solely about hush money payments,” Norm Eisen, a legal analyst and prominent Trump critic who was Democratic co-counsel for the U.S. House Judiciary Committee during Trump’s first impeachment, told reporters Thursday. “It’s about Trump’s alleged actions to hide information from voters to cover up election interference.”

In a small park outside the Manhattan Criminal Court, Trump supporters gathered Monday to affirm their loyalty to the former president, and to lambaste the trial — as Trump himself has frequently done — as a politically motivated witch hunt.

“What’s happening in that courtroom is a total sham,” said Steve Merczynski, of New York City, who wore a hand-embroidered scarf declaring “MAGA again.”

“This is all run by the Biden criminal administration,” Merczynski added. (There is no evidence that the Biden administration influenced the prosecution.)

Another Trump supporter, Dion Cini, said he didn’t want to judge Trump’s personal life.

“I’ve been to Thailand three times,” said Cini, a New Yorker who was once banned from Disney World for holding a Trump 2020 flag on Splash Mountain. “What do you think I do in Thailand, just sit in a chair? No, I go out and have fun and meet women. That’s what we do as men.”

Among the few anti-Trump demonstrators was Marc Leavitt, who stood on a park bench as he played the national anthem and other patriotic songs on a flute.

“I think the rule of law should proceed appropriately, and that’s what’s happening today,” said Leavitt. “And that’s a very good thing for America.”

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YUMA, ARIZONA - DECEMBER 10: Parents-to-be from Haiti stand at a gap in the U.S.-Mexico border wall after having traveled from South America to the United States on December 10, 2021 in Yuma, Arizona. Yuma has seen a surge of migrant crossings in the past week, with many immigrants trying to reach U.S. soil before the court-ordered re-implementation of the Trump-era "Remain in Mexico" policy. The policy requires asylum seekers to stay in Mexico during their U.S. immigration court process. (Photo by John Moore/Getty Images)

With polls showing unauthorized immigration as Republicans’ best issue for the fall, the GOP is looking to raise the alarm about voting by non-citizens and the undocumented.

The multi-pronged effort has been advanced in congressional legislation, public statements by top election officials and U.S. senators, plans produced by grassroots activists, and posts on X by former President Donald Trump and others.

Concern over illegal immigration and border security was Trump’s central campaign issue when he won the presidency in 2016, and polls show it as the GOP’s most potent political weapon again in 2024. A Feb. 27 Gallup poll found 28% of respondents saw it as the country’s most important issue, well ahead of any other topic.

At an April 2 rally in Michigan, Trump seized on the recent murder of a local woman, Ruby Garcia, who law enforcement has alleged was killed by her undocumented boyfriend.

“We threw him out of the country and crooked Joe Biden let him back in and let him stay and he viciously killed Ruby,” said Trump.

But the party is also using the issue to bolster its ongoing push to stoke fear about voter fraud and press for more restrictive voting rules. And it has often trafficked in false and misleading claims about voting by undocumented immigrants.

Voter fraud claims

Voting by non-citizens is extremely rare. That’s because, voting advocates say, non-citizens are especially careful not to do anything that might jeopardize their status in the country.

A voter fraud database run by the conservative Heritage Foundation, which covers several decades in which billions of votes have been cast across the country, contains 29 entries that mention non-citizens. In some of these, a non-citizen registered but did not vote.

Still, over the last few weeks, Republican secretaries of state from Georgia, Mississippi, and Alabama, and at least two U.S. Senate Republicans, were the latest to tout the issue.

Georgia Secretary of State Brad Raffensperger wrote in a March 12 op-ed that “leftist-activist allies” of President Joe Biden “want to open the gate to non-citizen voting.”

At issue is a lawsuit challenging a Georgia measure requiring people registering to vote to show documentary proof of citizenship.

The voting-rights advocates behind the suit say the requirement isn’t needed, and can present a barrier to registration for some voters, especially naturalized citizens, who may not have easy access to citizenship documents.

In the op-ed, Raffensperger, who famously resisted Trump’s pressure to collude in subverting Georgia’s 2020 election results, sought to conflate the issue of illegal voting by the undocumented with burgeoning efforts by a few Democratic-led cities, including Washington, D.C., to allow legal non-citizens to vote in local elections.

He has pushed for a constitutional amendment in Georgia that would bar local governments in the state from enfranchising non-citizens.

“Leftist activists have already shown that they want to change the laws that require voters to be U.S. citizens,” Raffensperger wrote. “A constitutional amendment would eliminate any possibility for future efforts to change those laws.”

Warning on DOJ program

Days earlier, Mississippi Secretary of State Michael Watson sent a letter to the U.S. Justice Department, warning that a federal program aimed at making voter registration easier for people in the custody of the U.S. Marshals Service and the Bureau of Prison could lead to the registration not only of ineligible felons but also of the undocumented.

“Due to the Biden Administration’s border policies, millions of illegal aliens have not only been allowed into this country during the last three years, but they have also been allowed to stay. Many of these aliens have been in the custody of an agency of the Department of Justice including the Marshals,” Watson wrote in the letter, which his office provided to States Newsroom.

“Providing ineligible non-citizens with information on how to register to vote undoubtedly encourages them to illegally register to vote.”

The Justice Department program is part of the Biden administration’s response to the president’s sweeping 2021 executive order aimed at using federal government agencies to expand access to voter registration. Republicans have condemned the order as an improper attempt to use public resources to advance partisan political goals. There is no evidence the order has led to ineligible voters being added to the rolls.

Alabama Secretary of State Wes Allen, as well as Sen. Katie Britt, R-Ala., also sought to raise concerns about non-citizen voting in an exchange at a March 12 hearing of the U.S. Senate Judiciary Committee. The two Alabama Republicans charged that the federal government has denied election officials the tools they need to verify citizenship.

“I think (verifying citizenship) is important, now more than ever, especially given what’s happening at the southern border,” said Allen, who was testifying before the panel.

At the same hearing, Sen. Mike Lee, R-Utah, used his time to ask the witnesses if they agreed that only U.S. citizens should be able to vote in federal elections — something that’s already the law — and that people registering to vote should have to show proof of citizenship. Lee later sent out a clip of the exchange on X. 

Memo calls for proof of citizenship to register

Also last month, the conservative voting activist Cleta Mitchell, who played a key role in Trump’s bid to overturn the 2020 election, circulated a memo on “the threat of non-citizen voting in 2024.” The memo, posted online by a conservative advocacy group, called for a federal law requiring people to show proof of citizenship when registering, among other steps.

“There are myriad left-wing advocacy groups who register illegals to vote,” Mitchell wrote, a charge for which she did not provide evidence.

But the party’s efforts to tie together voting and immigration have been underway for longer in this election cycle. Last March, as States Newsroom reported, a group of prominent conservative election activists came together to promote what they called a national campaign to “protect voting at all levels of government as the exclusive right of citizens.”

Months later, congressional Republicans unveiled a sweeping elections bill, which aimed to capture the GOP’s top priorities in its push to tighten voting rules, and which contained a full section on stopping non-citizen voting.

Among other steps, the measure would give states more access to federal data on citizenship and make it easier for them to remove people flagged as non-citizens from the rolls. It also would penalize states where non-citizens can vote in local elections by cutting their share of federal election funding.

While Democrats control the Senate and White House, the bill has little chance of becoming law.

Legislation on non-citizen voting

Separately, in the current session of Congress alone, the House Administration Committee has passed seven different bills addressing non-citizen voting.

Last year, the House voted to use Congress’ authority over the District of Columbia to overturn D.C.’s law enfranchising non-citizens — the first time the House had voted to overturn a District bill since 2015. The Senate didn’t take up the bill.

One Republican lawmaker introduced a resolution calling for a constitutional amendment to ban non-citizen voting.

Legal non-citizen voting has a long history in the U.S. In the middle of the 19th century, at least 16 states passed measures enfranchising non-citizens, often to lure workers to underpopulated western states.

These laws were gradually repealed in the late 19th and early 20th century — a period when a more general anxiety about mass voting led to Jim Crow laws in the South and laws restricting voting by Catholic and Jewish immigrants in the north.

Some prominent figures have falsely suggested that Democrats are soft-pedaling border security so they can benefit from the votes of the undocumented.

“That’s why they are allowing these people to come in — people that don’t speak our language — they are signing them up to vote,” Trump said at a January rally in Iowa. “And I believe that’s why you are having millions of people pour into our country and it could very well affect the next election. That’s why they are doing it.”

Elon Musk, the billionaire tech entrepreneur, has taken a similar view.

“Dems won’t deport, because every illegal is a highly likely vote at some point,” Musk told his over 170 million followers in a Feb. 26 post on X, which he owns, commenting on news that an undocumented immigrant hadn’t been deported despite a string of arrests. “That simple incentive explains what seems to be insane behavior.”

U.S. Sen. J.D. Vance, R-Ohio, charged in a 2022 TV ad: “Joe Biden’s open border is killing Ohioans with more illegal drugs and more Democrat voters pouring into this country.”

Kansas law

One figure who may have done more than any to promote the threat of voting by non-citizens is Kansas Attorney General Kris Kobach. As the state’s secretary of state, Kobach pushed for a law requiring voter registrants to provide proof of citizenship.

The law was ultimately struck down by a federal court, which found “no credible evidence” that a significant number of non-citizens had registered to vote before it was implemented. The law was responsible for keeping tens of thousands of voter registration applications in limbo during an election.

Kobach went on to chair a voter fraud commission created in 2017 by the Trump White House, which pushed for a federal law similar to the Kansas law. The panel disbanded the following year without providing evidence of widespread voter fraud.

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(Getty Images)

This year’s presidential election will be the first since generative AI — a form of artificial intelligence that can create new content, including images, audio, and video — became widely available. That’s raising fears that millions of voters could be deceived by a barrage of political deepfakes.

But, while Congress has done little to address the issue, states are moving aggressively to respond — though questions remain about how effective any new measures to combat AI-created disinformation will be.

Last year, a fake, AI-generated audio recording of a conversation between a liberal Slovakian politician and a journalist, in which they discussed how to rig the country’s upcoming election, offered a warning to democracies around the world.

Here in the United States, the urgency of the AI threat was driven home in February, when, in the days before the New Hampshire primary, thousands of voters in the state received a robocall with an AI-generated voice impersonating President Joe Biden, urging them not to vote. A Democratic operative working for a rival candidate has admitted to commissioning the calls.

In response to the call, the Federal Communications Commission issued a ruling restricting robocalls that contain AI-generated voices.

Some conservative groups even appear to be using AI tools to assist with mass voter registration challenges — raising concerns that the technology could be harnessed to help existing voter suppression schemes. 

“Instead of voters looking to trusted sources of information about elections, including their state or county board of elections, AI-generated content can grab the voters’ attention,” said Megan Bellamy, vice president for law and policy at the Voting Rights Lab, an advocacy group that tracks election-related state legislation. “And this can lead to chaos and confusion leading up to and even after Election Day.”

Disinformation worries

The AI threat has emerged at a time when democracy advocates already are deeply concerned about the potential for “ordinary” online disinformation to confuse voters, and when allies of former president Donald Trump appear to be having success in fighting off efforts to curb disinformation.

But states are responding to the AI threat. Since the start of last year, 101 bills addressing AI and election disinformation have been introduced, according to a March 26 analysis by the Voting Rights Lab.

On March 27, Oregon became the latest state — after Wisconsin, New Mexico, Indiana and Utah — to enact a law on AI-generated election disinformation. Florida and Idaho lawmakers have passed their own measures, which are currently on the desks of those states’ governors.

Arizona, Georgia, Iowa and Hawaii, meanwhile, have all passed at least one bill — in the case of Arizona, two — through one chamber.

As that list of states makes clear, red, blue, and purple states all have devoted attention to the issue.

States urged to act

Meanwhile, a new report on how to combat the AI threat to elections, drawing on input from four Democratic secretaries of state, was released March 25 by the NewDEAL Forum, a progressive advocacy group.

“(G)enerative AI has the ability to drastically increase the spread of election mis- and disinformation and cause confusion among voters,” the report warned. “For instance, ‘deepfakes’ (AI-generated images, voices, or videos) could be used to portray a candidate saying or doing things that never happened.”

The NewDEAL Forum report urges states to take several steps to respond to the threat, including requiring that certain kinds of AI-generated campaign material be clearly labeled; conducting role-playing exercises to help anticipate the problems that AI could cause; creating rapid-response systems for communicating with voters and the media, in order to knock down AI-generated disinformation; and educating the public ahead of time.

Secretaries of State Steve Simon of Minnesota, Jocelyn Benson of Michigan, Maggie Toulouse Oliver of New Mexico and Adrian Fontes of Arizona provided input for the report. All four are actively working to prepare their states on the issue.

Loopholes seen

Despite the flurry of activity by lawmakers, officials, and outside experts, several of the measures examined in the Voting Rights Lab analysis appear to have weaknesses or loopholes that may raise questions about their ability to effectively protect voters from AI.

Most of the bills require that creators add a disclaimer to any AI-generated content, noting the use of AI, as the NewDEAL Forum report recommends.

But the new Wisconsin law, for instance, requires the disclaimer only for content created by campaigns, meaning deepfakes produced by outside groups but intended to influence an election — hardly an unlikely scenario — would be unaffected.

In addition, the measure is limited to content produced by generative AI, even though experts say other types of synthetic content that don’t use AI, like Photoshop and CGI — sometimes referred to as “cheap fakes” — can be just as effective at fooling viewers or listeners, and can be more easily produced.

For that reason, the NewDEAL Forum report recommends that state laws cover all synthetic content, not just that which use AI.

The Wisconsin, Utah, and Indiana laws also contain no criminal penalties — violations are punishable by a $1000 fine — raising questions about whether they will work as a deterrent.

The Arizona and Florida bills do include criminal penalties. But Arizona’s two bills apply only to digital impersonation of a candidate, meaning plenty of other forms of AI-generated deception — impersonating a news anchor reporting a story, for instance — would remain legal.

And one of the Arizona bills, as well as New Mexico’s law, applied only in the 90 days before an election, even though AI-generated content that appears before that window could potentially still affect the vote.

Experts say the shortcomings exist in large part because, since the threat is so new, states don’t yet have a clear sense of exactly what form it will take.

“The legislative bodies are trying to figure out the best approach, and they’re working off of examples that they’ve already seen,” said Bellamy, pointing to the examples of the Slovakian audio and the Biden robocalls.

“They’re just not sure what direction this is coming from, but feeling the need to do something.”

“I think that we will see the solutions evolve,” Bellamy added. “The danger of that is that AI-generated content and what it can do is also likely to evolve at the same time. So hopefully we can keep up.”

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Former President Donald Trump speaks at a fundraiser for the Alabama republican party Friday, Aug. 4, 2023 in Montgomery, Ala. (Alabama Reflector Photo by Stew Milne)

With less than six months before voting begins, the legal jousting over the rules for the 2024 election is already underway. And former President Donald Trump’s campaign is getting support from allies who have stayed mostly under the national radar: red-state attorneys general.

In court filings made in recent months, these chief state legal officers have advanced a string of arguments — some strikingly far-reaching — that appear designed to lay the groundwork for Republican legal victories in the event of a contested presidential vote, or to otherwise boost Trump and the GOP.

Often led by Alabama Attorney General Steve Marshall, a loose coalition of Republican-led states has submitted briefs urging judges to:

• Throw out certain mail ballots,
• Weaken long-standing protections against racial discrimination in voting,
• Green-light gerrymandered district maps,
• And empower partisan state legislatures, rather than courts, to set election rules.

“These are all setting up an argument, potentially, to say that the 2024 election was flawed because of all these state practices that are questionable,” said Paul Nolette, a political science professor at Marquette University in Milwaukee who has written in depth on the role of state AGs. “The AGs just have been critical in pushing these arguments.”

Marshall’s office did not respond to a request to comment for this story. But last month Marshall also led a coalition of red states in submitting an amicus brief urging the Supreme Court to pause Trump’s election subversion trial tied to the events of Jan. 6, 2021 — a stance that aligned the group perfectly with the interests of the Trump campaign.

And in 2020, many of these same state AGs, including Marshall, sought to have the courts overturn Trump’s election loss.

An election decided in the courts?

The danger of outright election subversion this year appears to have receded somewhat, election law experts have said, thanks to important federal legislation and the results of the last midterms. But the chances that the election will be contested, and ultimately settled in the courts, remain very high.

In that scenario, advocates and experts say, these Republican AGs look well-placed to provide the kinds of conservative legal arguments that could prove pivotal, both by directly influencing court decisions and by infiltrating the broader public debate.

But many of these claims, democracy advocates warn — especially those that support new voting restrictions, reduce the power of minority voters, or undermine courts’ authority to set election rules — could threaten fair elections.

“A huge part of the overall anti-democracy movement is really based on continuing to find ways to use legal tactics as a jumping-off point to spread the election denier message,” said Lizzie Ulmer, senior vice president of strategy and communications for States United Democracy Center, a pro-democracy group.

“There are good and pro-democracy state AGs on both sides of the aisle. But the truth is there are AGs in office right now that have the potential to do real harm. And we’ve seen that in the past and we’re seeing it today.”

Growing politicization

The involvement of the Republican AGs in elections cases with national stakes marks the latest step in a decades-long trend toward AGs taking on more politicized roles.

In less polarized times, experts say, state AGs mostly presented as apolitical prosecutors, and frequently teamed up across party lines to tackle issues of public concern.

That began to shift in earnest during the George W. Bush administration, when Democratic AGs used a series of splashy lawsuits against Wall Street firms and corporate polluters, among others, to advance national policy and political goals — and to boost their own national profiles.

But in the Trump era, the shift has intensified. Several close observers said a key moment came in 2017, when Republicans sought to oust then-Virginia AG Mark Herring, a Democrat — ending a long-standing custom in which neither party spent money targeting incumbent AGs of the other party. Herring ultimately won re-election, but that cycle saw record campaign spending on AG races.

In Republican-led states, the politicization of AG offices reached its height around the 2020 election, centered around the Republican Attorneys General Association, an advocacy group for Republican AGs. In the leadup to the events of Jan. 6, 2021, the group’s fundraising arm, the Rule of Law Defense Fund, sent robocalls urging people to gather for a march to the U.S. Capitol to “stop the steal” and “protect the integrity of our elections.”

Marshall, the Alabama AG, served as chair of RLDF at the time, and has said he was unaware of the robocalls. He has declined to say whether RAGA or RLDF staff were at the Capitol on Jan. 6, and his office has denied public records requests by the Alabama Political Reporter for his calendars covering the period.

Along with other Republican AGs, Marshall sought to cast doubt on the 2020 election results, telling Newsmax not long after the vote: “We obviously have concerns about some of the issues, specifically of irregularities and fraud in other places.”

On Dec. 10, 2020, Marshall and other Republican AGs joined Trump for a meeting at the White House. A day earlier, Marshall had announced that Alabama would join a lawsuit filed by Texas Attorney General Ken Paxton seeking to overturn the results in Pennsylvania and three other states narrowly won by Joe Biden. Seventeen Republican-led states ultimately signed on to the Texas case.

Idaho AG disagreed

One state that didn’t join the suit was Idaho, whose AG at the time, Republican Lawrence Wasden, saw the Texas lawsuit as an improper attempt to use the AG’s office to make policy — and to interfere in other states’ business.

“The policy-making function under both the state and federal constitutions is clearly put in the hands of the legislative branch of government,” Wasden told States Newsroom. “The AG is an executive officer, and does not have those powers. That’s not how we should make public policy.”

After 20 years in office, Wasden lost his 2022 re-election bid in the Republican primary to former U.S. Rep. Raul Labrador — a defeat Wasden attributes to GOP voter anger at his decision not to join the Texas case. But he hasn’t wavered in his view that it was the right call.

“If Texas can control or influence the outcome of the election in Pennsylvania, then California can influence the election in Idaho,” Wasden said. “And that is not how federalism works.”

Labrador was elected attorney general later that year, and has signed Idaho on to several of the elections cases brought by Republican AGs.

As for Marshall, in 2021, he withdrew Alabama from the bipartisan National Association of Attorneys General, saying the group had “moved too far to the left.” The next year, Texas, Missouri, and Montana followed suit.

In 2022, Marshall declined to say, when asked under oath while testifying before Congress, that Biden was “duly elected,” answering only that “he is the president of this country.”

Months later, Marshall was elected chair of RAGA. Now, he’s leading the charge among Republican AGs on election cases with an eye on 2024.

Weakening voting protections

Marshall has battled on behalf of strict voting laws in his own state.

His office energetically, and successfully, fought off a 2020 court challenge to an Alabama law that bars people with past convictions from casting a ballot. In that year’s election, he also succeeded in getting the Supreme Court to block an effort to allow curbside voting, which voting advocates said could offer easier access for elderly and disabled voters .

But it’s Marshall’s work on behalf of Republicans looking to influence election rules far beyond the Yellowhammer State that could have an even greater impact.

In January, Marshall led a coalition of 17 red states that submitted an amicus brief supporting a bid by national Republicans to require Pennsylvania to reject mail ballots with incorrect or missing dates.

In Pennsylvania’s 2020 election, there were over 10,000 such ballots, and how the case is resolved could help determine the winner of this pivotal swing state, if the result is very close. Democrats have voted by mail at significantly higher rates than Republicans in recent elections.

But the impact could be broader still. A district court found last year that the missing or incorrect dates are irrelevant to establishing a vote’s legitimacy.

That means, the court ruled, that under the materiality provision of civil rights law — first included in the 1964 Civil Rights Act, then extended to cover non-federal elections in the Voting Rights Act the following year — a missing or incorrect date can’t be used as a reason to reject a vote.

In their brief, Alabama and the other states called the district court’s ruling “seriously misguided.”

They argued that the materiality provision should be read more narrowly, and doesn’t bar states from imposing reasonable ballot integrity measures. And, they claimed, the provision contains no “private right of action,” meaning it can be enforced only by the U.S. Justice Department, not by the civil rights groups involved in the Pennsylvania case.

By itself, making the materiality provision harder to use would likely have only a limited impact, since it hasn’t been among the tools most commonly used to protect voting rights, noted Cameron Kistler, counsel at Protect Democracy, a nonpartisan democracy advocacy group.

But, he said, it comes in the context of other ongoing conservative legal attacks on voting protections — including attempts to weaken the Voting Rights Act, and suggestions by the Supreme Court that it may lower the level of scrutiny it applies to voting laws that are accused of harming voters.

“The tools that you’d use to ensure free and fair elections are slowly being pulled away,” said Kistler. “When you take them all together, that’s when it starts to get really problematic.”

Voting Rights Act

As if to prove the point, a separate amicus brief submitted in December by Marshall’s office argued that Section 2 of the Voting Rights Act — the law’s most important plank, since the Supreme Court neutered Section 5 a decade ago — also contains no private right of action.

Marshall and his allies were urging a federal appeals court to reverse a ruling striking down Louisiana’s congressional map as a racial gerrymander under Section 2.

The notion that Section 2 contains no private right of action had until recently been seen by many advocates as outlandish. But a federal judge endorsed it in a separate 2022 case involving an Arkansas redistricting plan, brought by Arkansas Attorney General Tim Griffin, a Republican, who has signed his state on to several of Marshall’s amicus briefs. That decision was upheld on appeal in December.

The issue is likely to come before the Supreme Court. A ruling for Arkansas could dramatically limit the power of the VRA to stop racial discrimination in voting.

Separately, Marshall has sought to defend Alabama’s own redistricting plan. In arguing that the state should not have to draw a new map with an additional majority-Black district, his office adopted an interpretation of the VRA that, experts said, would have made it all but impossible to use for stopping racial gerrymanders.

Nicholas Stephanopoulos, a prominent election law scholar at Harvard Law School, has called Alabama’s approach to the question “directly contrary to 40 years of precedent.”

The claim was too extreme even for the conservative-dominated Supreme Court, which ultimately ordered Alabama to create a new map.

In response, Marshall signaled an agenda that went well beyond Alabama.

“There should be nothing more offensive to the people of our great state than to be sidelined in 2023 by a view of Alabama that is stuck in 1963,” he said in a statement. “This racial agenda is pressed by left-wing activists, not just in Alabama, but in any Republican state where it might advantage Democrats.”

And he compared the ruling, which aimed to empower Black voters, with Jim Crow.

“If this brazen and divisive commandeering is permitted without even a whisper of concern from other quarters, America’s congressional elections as we know them will never be the same,” Marshall continued. “We will be grouped together by race alone, with counties and cities split down the middle—the same way that we were so wrongfully segregated once before.”

Marshall also led a coalition of 18 GOP-led states that filed a 2021 amicus brief supporting Arizona’s defense of a law requiring voters who don’t sign their mail ballots to do so by 7 p.m. on election night.

The issue may seem minor, but Marshall’s brief invoked a far more fundamental question, arguing that state legislatures, not the courts, are in charge of setting election rules.

“The U.S. Constitution is unambiguous about the right of state legislatures to determine the manner of holding elections within their respective states,” wrote Marshall. “Accordingly, state legislatures, not federal courts, are vested with the legal authority to determine state election laws. Court attempts to micromanage election laws duly passed by state legislatures conflict with our constitutional structure and legal precedent.”

When North Carolina brought a version of this claim — known as the Independent State Legislature Theory — to the Supreme Court last year, experts warned that it could radically reshape election law, giving partisan state lawmakers almost unfettered power to make the rules. The Justices ultimately rejected the argument.

Why AGs enjoy influence

Advocates say it’s difficult to assess whether, and to what extent, courts are swayed by amicus briefs. But, they add, the role of state AGs as their state’s chief legal officer gives their claims an invaluable sheen of authority.

“State AGs are taken seriously because of the governmental role they play, in a way that parties, who do not have a governmental role, typically are not,” said Dax Goldstein, a senior counsel at States United Democracy Center. “So there’s a real difference between a sitting AG filing a brief and (Donald Trump lawyer) John Eastman filing a brief.”

In addition, since a 2007 Supreme Court ruling in a case where a group of states led by Massachusetts sued the George W. Bush administration’s Environmental Protection Agency, states have enjoyed more power than individual plaintiffs to bring lawsuits on public policy issues.

“States have a greater ability to bring legal challenges than private citizens do,” said Kistler. “So when you have these super active state officials with a greater ability to bring cases than private parties and a judiciary that’s willing to entertain the cases, it makes a difference.”

Nolette, the Marquette political scientist, noted that if the AGs’ series of briefs in election cases appear coordinated, it’s no accident.

“There’s a lot of strategy that goes into planning these far-reaching arguments,” Nolette said, adding that AGs of both parties use their partisan organizations — the Republican Attorney Generals Association, and the Democratic Attorney Generals Association — to align their efforts and figure out the venues where they might have the most chance of success.

“It’s almost like buying a lottery ticket, trying to boost the chances of those arguments taking hold somewhere,” Nolette continued. “And once they get one district court judge to agree with it, then it moves them to a different state of respectability. It’s like, well, a federal judge has agreed with us, so this is a legitimate argument, even if it was considered totally out there in previous years.”

Ralph Chapoco contributed to this report.

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A voter on bicycle drops off their ballot at a drive through drop-off for absentee ballots on Aug. 11, 2020 in Minneapolis, Minnesota. Voters in Minneapolis were able to drop off their mail-in ballots in person at two different locations, which were made available temporarily to assuage fears of delay in USPS delivery. (Photo by Stephen Maturen/Getty Images)

Fearing that Democrats hold a crucial edge in ballots cast before Election Day, national Republicans are working to convince their voters to take advantage of mail and early voting this year.

“We can’t play catch up. We can’t start from behind. We can’t let Dems get a big head start and think we’re going to win it all on Election Day,” Republican National Committee chair Ronna McDaniel said in November on a conference call aimed at promoting the group’s Bank Your Vote initiative to encourage early and mail voting. “Things happen on Election Day.”

But the party’s army of lawyers is, more quietly, sending a very different message. The RNC is fighting in courtrooms and legal filings in key election battlegrounds across the country to make it harder to cast a mail ballot and to have it counted.

On Feb. 20, attorneys for the RNC were in a federal courtroom in Philadelphia, in a bid to require that Pennsylvania throw out mail ballots with missing or incorrect dates.

Eleven days earlier, they filed a lawsuit challenging several provisions of Arizona’s newly adopted election rules, including a rule allowing voters who have not shown proof of citizenship to cast a mail ballot.

And that same day, they asked a court in Georgia to uphold a state law that imposes stricter rules on mail voting.

Separately, in recent months the RNC has asked courts to let it join the defense of laws in Ohio, Wisconsin, and North Carolina that similarly impose tighter rules on mail voting (judges in the latter two states denied the requests, while the Ohio motion was approved).

The party also has sued to block a New York law that lets people vote by mail without an excuse (the state’s Supreme Court this month dismissed the complaint). And it has formally weighed in against proposed changes to Nevada’s election rules, including one that makes it easier for election officials to prevent volunteer observers from disrupting the counting of mail ballots.

In January, the RNC went further than ever, filing a lawsuit in Mississippi that it has said aims to obtain a nationwide ban on mail ballots that arrive after Election Day. RNC lawyers stated plainly in their complaint that Republicans’ interests are at stake because mail voting tends to favor Democrats.

States with close races targeted

Though it’s received relatively little attention, the RNC’s legal onslaught could have a major impact on the 2024 elections.

Pennsylvania, Georgia, Arizona, Wisconsin, North Carolina, and Nevada are all set to be among the closest states in this year’s presidential race, while Pennsylvania, Ohio, Arizona, Wisconsin, and Nevada host pivotal U.S. Senate contests. New York, meanwhile, is home to several swing congressional districts that could determine control of the U.S. House.

And the legal effort against mail voting has been matched by a legislative one. Thirteen states, including Florida, Texas, North Carolina, Arizona, and Ohio, have passed 16 bills to restrict mail voting since the start of 2023, according to a database run by the Voting Rights Lab.

It all amounts to a multi-pronged effort to suppress voting by mail, voting advocates say — one that could threaten access to the ballot this fall, especially for Democrats, who are now more likely than Republicans to use mail voting. At its core are legal arguments aimed at convincing judges to interpret the law in ways that are explicitly adverse to voters.

The push sits uneasily alongside an RNC campaign to convince GOP voters to embrace mail and early voting. But it’s right in keeping with former President Donald Trump’s years-long, evidence-free campaign against voting by mail.

“In courtrooms and state legislatures across the country, Republicans are doing everything in their power to restrict mail-in voting,” said Marc Elias, a prominent Democratic election lawyer, in a statement. “The RNC’s legal strategy is clear. The Republican Party no longer seeks to earn the support of a majority of the American electorate. Instead, they are launching a legal assault on our democracy.”

A spokesman for the RNC did not respond to a request for comment.

A muddled message on mail voting

In 2020, many states loosened rules on mail voting in response to COVID-19. That year’s election saw record high turnout despite the pandemic, with nearly half of all voters casting a mail ballot — a huge increase from around 22% in 2016.

Even with COVID-19 tamed, many states have kept their more liberal mail voting rules in place, or, like New York, have passed new laws expanding access to mail ballots.

While leading Democrats have embraced mail voting, Trump has repeatedly denounced it, falsely claiming it opens the door to massive fraud.

“MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES,” Trump tweeted in June 2020, adding that the result would be a “RIGGED” election.

It’s true that several of the extremely rare instances of proven voter fraud have involved mail voting. But there’s no evidence of systematic mail voter fraud of the kind that Trump has claimed threatens the integrity of a presidential election.

A voter fraud database run by the Heritage Foundation, a conservative think tank, lists 279 cases of “fraudulent use of absentee ballots,” going back to 1988 — since which time hundreds of millions of mail ballots have been cast.

Meanwhile, GOP lawyers have gone to the mat to try to put the mail voting genie back in the bottle.

“We’ve watched Democrats systematically try to codify those post-COVID changes that they made, and we’ve been in the courts trying to keep those pre-COVID protections in place for our elections,” RNC chair Ronna McDaniel explained in October. “There’s been a battle waged.”

It’s not surprising, then, that Democrats have in recent elections used mail voting at significantly higher rates than Republicans. So pronounced is the split that in 2020, President Joe Biden won the mail vote in 14 out of 15 states analyzed by 538.com, while Trump likewise won the Election Day vote in 14 out of 15.

That’s led the GOP to fret that it now often goes into Election Day already trailing by a significant margin. In response, the RNC last year launched the Bank Your Vote initiative to encourage Republicans to vote early or by mail.

The effort includes websites in all 50 states, and even an ad recorded by Trump — albeit without much visible enthusiasm.

“Sign up and commit to voting early,” Trump says. “We must defeat the far left at their own game.”

But Trump has continued to muddy that message.

“You know, we have these elections that last for 62 days,” Trump declared last month in his victory speech after the Iowa caucuses. “And if you need some more time, take as much time as you want. And so many bad things happen. We have to get rid of mail-in ballots because once you have mail-in ballots, you have crooked elections.”

RNC court filings

The RNC’s legal assault on mail voting suggests a similar view. In several court filings, RNC lawyers have suggested that tight safeguards are needed to ensure mail voting doesn’t allow for fraudulent votes.

Ohio’s law that restricts who can return a mail ballot on behalf of a voter should be upheld, the RNC argued in one typical filing, because it guards against “an increased risk of voter fraud and other irregularities.”

The Republican bid to restrict mail voting is part of a larger effort by the party since 2020 to devote more resources to “election integrity” — tighter election rules that prioritize anti-fraud measures over access. It includes a year-round election integrity legal department, which has said it worked with over 90 law firms and participated in nearly 100 lawsuits during the 2022 cycle.

So far this cycle, the RNC has paid over $4 million to two top Republican law firms, Consovoy McCarthy and Wiley Rein, according to FEC records. Thomas McCarthy, a co-founder of Consovoy McCarthy, is listed on RNC motions in the Mississippi, Georgia and Wisconsin cases, among others.

The focus on “election integrity” comes as McDaniel, the RNC chair, is reported to be stepping down at the end of the month. Trump’s choice to replace her, North Carolina GOP chair Michael Whatley, has stressed the importance of tight voting rules for Republican success, States Newsroom has reported.

Chipping away at mail votes

The most far-reaching of the RNC’s cases is the lawsuit it filed with other Republicans in January against a Mississippi law that allows mail ballots that arrive up to five days after an election to be counted, as long as they’re postmarked by Election Day.

Federal law sets Election Day as the Tuesday after the first Monday in November, the suit argues, so by extending the election past that day, Mississippi is violating federal law.

The RNC has said the goal is to obtain a ruling from a judge that bars post-Election-Day ballots from being counted not just in Mississippi but nationwide. The 5th Circuit, which contains Mississippi, is known as perhaps the most conservative judicial circuit in the country.

Election law experts have said it’s unlikely, but not impossible, that a court could accept the RNC’s argument.

If the case were to reach the Supreme Court, at least one justice appears friendly. In 2020, when the court upheld Wisconsin’s ban on late-arriving ballots, Justice Brett Kavanaugh wrote that states have the right to set election deadlines “to avoid the chaos and suspicions of impropriety that can ensue when thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

Mississippi is one of 18 states — including key battlegrounds like Ohio, Nevada, Virginia, Texas, and New York — plus the District of Columbia, that count ballots that arrive after Election Day. (North Carolina last year passed a law that restricts mail voting in several ways, including by banning ballots that arrive after Election Day. It’s that law that the RNC sought unsuccessfully to help defend from a court challenge by Democrats, which is ongoing.)

The number of votes at issue could be significant. In 2020, the U.S. Postal Service said it processed nearly 190,000 ballots in the two days after the election. Most of those, it said, were in states that allow late-arriving ballots.

The Mississippi lawsuit makes clear that, despite the Bank Your Vote campaign, Republicans want to curtail mail voting because they think it gives Democrats an edge.

“Because voting by mail is starkly polarized by party, [allowing late-arriving ballots] directly harms Plaintiffs,” the RNC’s lawyers wrote in the complaint. “For example, according to the MIT Election Lab, 46% of Democratic voters in the 2022 General Election mailed in their ballots, compared to only 27% of Republicans. That means the late-arriving mail-in ballots that are counted for five additional days disproportionately break for Democrats.”

Pennsylvania case also crucial

The Pennsylvania case is another that could reverberate. In November 2022, the state Supreme Court ruled — in response to a suit filed by the RNC and other Republicans — that over 10,000 mail ballots on which the voter had neglected to write the date on the outer envelope, or had written an incorrect date, must be rejected.

The state’s NAACP chapter filed its own suit in federal court in response. The RNC quickly intervened, arguing that the state Supreme Court’s ruling should be upheld. A district court ruled for the NAACP in November, finding that the Civil Rights Act bars states from rejecting votes based on immaterial paperwork errors. The RNC appealed, arguing for a narrower interpretation of the landmark civil rights law, setting up the Feb. 20 hearing.

In a sign that the case could have an impact beyond Pennsylvania, 17 Republican-led states last month submitted an amicus brief in support of the RNC’s position.

The other cases may not have the same reach as those two. But together, they broadly aim to tighten the rules around mail voting to a degree that could significantly chip away at mail votes.

RNC lawyers have marshaled a range of arguments in these cases.

They have claimed, unsuccessfully, that New York’s law expanding access to mail voting violates the state’s constitution, which bans no-excuse mail voting. They’ve said Georgia’s new deadline to apply for a mail ballot of seven days before Election Day doesn’t violate the federal law barring deadlines of fewer than 11 days, because the federal government lacks the authority to regulate these deadlines.

No mail voting rule appears too small to escape the notice of RNC lawyers. This month’s lawsuit against Arizona targets a new rule that lets voters who registered without proof of citizenship — and therefore, under Arizona law, can vote in federal elections only — receive a mail ballot, arguing that state law bars these voters from voting by mail.

And they’ve submitted comments to a Nevada commission, criticizing a proposed rule there that gives election officials more power to ensure the counting process for mail ballots isn’t disrupted. The new powers could let election officials infringe on the public’s right to witness the counting, the group’s lawyers assert.

Meanwhile, supporters of mail voting say Republican fears about an influx of Democratic mail votes may be misplaced.

“Americans have used mail ballots for over a hundred years because they provide a safe and convenient way to ensure the right to vote,” said Barbara Smith Warner, the executive director of the National Vote at Home Institute, which advocates for mail voting. “Research has demonstrated time and time again that voting at home increases voter participation and turnout for all, with no partisan advantage for any side.”

“Attacks on mail ballots are red herrings to distract from their true intent — making it harder for citizens to vote, and sowing distrust in our elections,” Smith Warner said.

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Former President Donald Trump’s choice to be the next chair of the national Republican Party briefly teamed up last election cycle with a voter fraud watchdog group closely tied to Cleta Mitchell, the conservative lawyer who played a key role in Trump’s bid to subvert the 2020 vote.

Trump is backing Michael Whatley, the chair of the North Carolina GOP, to be the next Republican National Committee chair, the New York Times reported Feb. 6. Ronna McDaniel, who currently holds the post, has told Trump she will step down later this month, according to the Times.

Whatley, a veteran GOP campaign operative who served in the administration of President George W. Bush, is reported to have won Trump’s support because he backs Trump’s baseless claim that the 2020 election was stolen through widespread voter fraud. Last year, Trump endorsed Whatley, who is currently the RNC’s general counsel, to be the organization’s co-chair.

Whatley spoke at a 2022 conference aimed at rooting out voter fraud and organized by the North Carolina Election Integrity Team, the group’s founder, Jim Womack, told States Newsroom.

“We brought them to our summit,” said Womack. “I gave Whatley an opportunity to address our people, and he talked about how it was going to be a great team effort.”

Around that time, Whatley also let Womack briefly plug NCEIT on a conference call of county chairs, said Womack, who chairs the Lee County GOP.

NCEIT is a chapter of the Election Integrity Network, which Mitchell founded in 2021 to train poll watchers to aggressively hunt for fraud at the polls. Womack has called Mitchell “our mentor.”

Mitchell, who is based in North Carolina, was closely involved in Trump’s efforts to overturn the result of the 2020 election, including participating in the December 2020 phone call on which Trump urged Georgia Secretary of State Brad Raffensperger to “find” the votes he needed to win the state.

A special grand jury in Fulton County, Georgia recommended indicting Mitchell, but she was not charged.

The North Carolina Republican Party declined to comment about Whatley’s work with NCEIT.

Womack, who ran unsuccessfully against Whatley for state party chair in 2019, said that after Whatley’s appearance at the summit, the relationship fizzled, as Whatley kept NCEIT at arm’s length from the state party.

Womack said the party under Whatley discouraged Republican volunteers from getting involved with NCEIT.

“They were telling a lot of the counties, don’t use their reporting system, don’t go to their training, go to our training,” said Womack.

Indeed, Womack complained that Whatley hadn’t gone far enough in fighting against fraud.

Still, under Whatley, the state party in 2021 unveiled a 16-member “Election Integrity Committee” to push for tighter voting rules and recruit poll watchers.

At a conference that year hosted by the conservative group CPAC, Whatley suggested that if it wasn’t for the party’s election integrity legal work, Democrats would have stolen a 2020 election for state Supreme Court that was won by the Republican candidate by 401 votes.

“You can’t tell me in 100 North Carolina counties, they couldn’t have come up with four votes (in each) if I didn’t have lawyers and attorneys in every single one of those counties,” Whatley said.

“This is gonna have to be part of the Republican establishment going forward,” Whatley added, referring to intensified legal efforts. “This is going to be lawsuit after lawsuit after lawsuit.”

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WASHINGTON, DC - JANUARY 18: The U.S Capitol Building is prepared for the inaugural ceremonies for President-elect Joe Biden as American flags are placed in the ground on the National Mall on January 18, 2021 in Washington, DC. The approximately 191,500 U.S. flags will cover part of the National Mall and will represent the American people who are unable to travel to Washington, DC for the inauguration. (Photo by Joe Raedle/Getty Images)

The last time America elected a president, it led to a deadly assault on the U.S. Capitol and a failed coup that gravely damaged the political system and marred the peaceful transfer of power for the first time in U.S. history.

A year from now, the nation’s voters will decide another presidential contest — likely one that pits the same two candidates against each other.

Despite a slew of arrests and felony convictions stemming from the events of Jan. 6, 2021, there’s little sign that those who attacked democracy last time have significantly moderated their outlook.

Former President Donald Trump has warned that, if restored to power, he’ll seek retribution against his enemies. An unrepentant election denier runs one house of Congress. Threats of political violence, now commonplace, are said to have affected key voting decisions made by elected officials. And 3 out of 4 respondents to a recent poll think American democracy is at risk in the election, with nearly a quarter saying patriots may have to use violence to save the country.

“The United States electoral process, and indeed American democracy itself, is under great stress,” warned a September report by a group of election experts for the Safeguarding Democracy Project. “No longer can we take for granted that people will accept election results as legitimate.”

Since the tumult of January 2021, politicians, advocacy groups, and media outlets have rightly warned about a range of threats to a free and fair 2024 election — from problems with voter access and election administration to the potential for violence and chaos, or outright subversion of results, in the post-election period.

Perhaps less noticed has been the progress made toward shoring up the system — chiefly in the form of federal legislation making it harder to subvert a presidential election.

That’s why, with a year before voting culminates next November, it’s crucial to take stock of where the nation stands, and to identify where, in the view of election experts and voter advocates, the major vulnerabilities remain.

Election subversion

Perhaps the fear that looms largest in many observers’ minds is a repeat in some form of the failed, multi-pronged plot to overturn the election that culminated with the Jan. 6, 2021 attack — but one that succeeds this time.

For some, the recent ascension of Rep. Mike Johnson, R-La., to the role of speaker of the House adds to the sense of anxiety.

The New York Times has called Johnson “the most important architect” of congressional Republicans’ objections to the 2020 election results. Soon after the election, Johnson rallied 125 other GOP representatives to sign a legal brief arguing that President Joe Biden’s win should be overturned.

The Louisiana Republican then led the effort to get Republicans to refuse to certify the results, and he voted against certification in Arizona and Pennsylvania.

Johnson has never expressed regret for his role in the bid to overturn the results, or acknowledged that Biden was the legitimate winner.

“Johnson’s record on democracy is overtly dangerous, and his newfound power presents an acute threat to American elections,” an Oct. 26 email from a Democratic group of chief election officials, the Democratic Association of Secretaries of State, warned reporters.

There’s little doubt that having a leading election denier running the House is damaging to U.S. democracy in myriad ways — not least by further mainstreaming a dangerous ideology.

But, asked at an Oct. 25 news conference whether he was afraid that Johnson would try to overturn the election, Biden answered: “No.”

“Just like I was not worried that the last guy would be able to overturn the election,” Biden continued. “They had about 60 lawsuits and they all went to the Supreme Court and every time they lost. I understand the Constitution.”

Election law experts largely agree, noting that the speaker has no formal role in the certification process. And, they point out, it takes a full vote of both chambers to actually reject electoral votes — making it highly unlikely to succeed. For all the justified concern about what happened in 2020, no objection to a state’s electoral votes got more than seven votes in the Senate.

As important, experts say, the Electoral Count Reform Act, approved last year in response to Jan. 6, makes it all but impossible for Congress to overturn an election, no matter who’s in charge.

“The ability of Congress to interfere in the certification of a presidential election was already limited,” said Adav Noti, senior vice president and legal director of the Campaign Legal Center, which helped push for the ECRA. With the reform in place, Noti added, ”it’s even harder now for Congress to do anything other than properly certify the election.”

The ECRA, which reformed the outdated Electoral Count Act of 1887, made clear that the vice president’s role in certification is purely ministerial. He or she has no authority to reject a state’s electoral votes, as Jan. 6 rioters hoped to pressure Vice President Mike Pence to do.

More important, the ECRA laid out a judicial process for states to resolve disputes over electoral votes before they reach Congress. And it barred members of Congress from objecting to electoral votes that have already been approved by that judicial process — ensuring, essentially, that federal courts, not partisan politicians in Washington or the states, are in control.

That same provision of the law also addressed another avenue for subversion: State lawmakers or officials could corrupt their state’s vote count long before Congress meets, by changing election rules after the fact or just appointing electors directly.

Trump and his allies schemed to do that in 2020, by pressing legislatures to declare a “failed election” and substitute their own slates. Since then, lawmakers in Wisconsin, North Carolina, and Georgia, among other states, have moved to gain more control over elections, raising concerns about the possibility for state-level subversion.

But under the ECRA, states must appoint their electors according to state laws that existed before the election. That makes state-level subversion much harder.

“There was a fear that state legislatures would come in afterwards and appoint the electors they want anyway,” said Edward B. Foley, an election law professor at Ohio State University and an expert on the Electoral College. “That can’t be done under the ECRA.”

Chaos and delay

But though the law on paper is clear, Foley said he worries about a massive glut of election litigation, all filed in the immediate pre- and post-election period in one close, pivotal state.

The result, and perhaps the intention, could be to overwhelm the courts, potentially delaying decisions until a state risks missing the Dec. 11 “safe harbor” deadline. That could mean its electoral votes might not be counted.

“The American judiciary is not built for thousands and thousands of hours of attention to election matters,” said Foley. “So I think there are reasons to fear that something really gets out of hand in terms of litigation, and you start bumping up against those deadlines.”

That threat could be exacerbated by a little-noticed aspect of the Supreme Court’s June ruling in a major elections case, Moore v. Harper.

The court rejected the claim, pushed by conservatives, that state legislatures have essentially free rein to make election rules, unconstrained by state courts. But, as the election law scholar Rick Hasen has noted, the justices did give themselves the power to second-guess state courts if they decide state courts went too far in regulating an election.

This authority, Hasen has written, is going to be “hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results.”

Those statutory deadlines that Foley worries about also concern David Becker, the executive director of the Center for Election Innovation and Research.

He warns that election deniers — including grifters looking to exploit Trump voters’ fears of a stolen election for financial gain — will be even more effective this time at sowing disinformation if their candidate loses on election night. That could lead to even more, and more unpredictable, political violence.

“Instead of having it be focused on just one place at one time — the Capitol on January 6th — we could see it focused on the counting process, the certification process, on the meeting of the Electoral College, at various points in time in various places,” said Becker, a leading expert on election administration. “From talking to people around the country, there is a concern about efforts to basically undermine the will of the people.”

That kind of chaos could bog things down enough that the election’s statutory deadlines — the safe harbor deadline, the meeting of the Electoral College six days later, and the Jan. 6 certification by Congress — come into play and force a halt to the process. Indeed, Becker noted, that appears to have been part of the Trump team’s strategy last time around.

“The effort to string this out and delay until the winning candidate has his hand on the Bible on the steps of the Capitol — that’s almost certainly going to happen,” said Becker. “They’re going to do everything they can to slow down the mechanics of elections.”

Voter suppression

It may seem quaint in an era when there are fears about outright subversion. But perhaps the simplest way a free and fair election might be compromised is through old-fashioned voter suppression — something that many Democrats would argue already happened not too long ago.

An October report by the Voting Rights Lab, a voter advocacy group that tracks voting laws across the country, found that voters will face “significant new restrictions” in four key swing states: Georgia, New Hampshire, North Carolina, and Wisconsin. (A fifth swing state, Pennsylvania, will have both restrictive and expansive new voting laws in place.)

“Swing state voters often determine the outcome of our presidential elections,” said Liz Avore, a senior policy adviser for the group. “Millions of those voters will see new rules in 2024 — many restricting access to popular options like early and mail voting. How they respond could just be the difference in a tight presidential race.”

In all five of those states, it will be harder to vote by mail than it was in 2020.

North Carolina might have gone furthest in restricting mail voting. A strict photo ID law, passed in 2018 but newly approved by the state Supreme Court, requires that mail-in ballots, which already had to be notarized or signed by two witnesses, must also include a copy of a photo ID.

A different law passed this year by the state requires that mail ballots be received by 7:30 p.m. on Election Day, where previously they only had to be postmarked by Election Day and received by three days after. In 2020, 11,000 ballots arrived at election offices in those three days, according to figures provided by the Brennan Center.

In Georgia, the state with the smallest margin of victory last time, new rules require voters to provide a specific ID number both when they apply for and when they return a mail-in ballot. There are also tighter rules on when and where ballot drop boxes will be available. And residents are now allowed to challenge the eligibility of an unlimited number of voters, potentially overloading election officials with meritless challenges. Last year, 92,000 registrations were reportedly challenged.

Wisconsin, another state that could be pivotal, also made mail voting harder. State Supreme Court rulings have banned ballot drop boxes and barred third parties from returning mail ballots — restrictions that weren’t in place in 2020.

But that might not be the last word. The court now has a liberal majority, and a new lawsuit seeks to reinstate drop boxes, as well as expanding access to mail voting in other ways.

In Pennsylvania, as in North Carolina, mail-in ballots must now be received by Election Day to be counted. In 2020, in an accommodation to COVID-19, they only needed to be postmarked by Election Day.

Still, that restrictive change could be canceled out by an expansive one: This year, the state began automatically registering voters who have contact with the state DMV unless they opt out, making it easier to get on the rolls.

And New Hampshire will have some of the most antiquated and restrictive voting rules in the nation next year. Thanks to the expiration of COVID-19-era accommodations that temporarily expanded access to mail-in and early voting, most voters will have no other option than voting in person on Election Day — something that’s the case in only two other states.

It’s always hard to gauge just how many voters will be affected by new voting laws. Indeed, scholars increasingly appear to agree that changes to voting rules affect outcomes only in the very closest races.

But Biden won Georgia in 2020 by fewer than 12,000 votes, and Wisconsin by just over 20,000. If those or any of the other states with restrictive new laws are equally close next year, it could be hard to rule out the possibility that these measures — which are generally thought to affect more Democratic voters than Republican ones — made the difference.

That likely wouldn’t trigger the kind of national crisis that a conflict over electoral votes at the Capitol would. But it would compromise the election, and further undermine democracy, nonetheless.

Still, too much hand-wringing over the laws could be counter-productive.

Becker suggested that the biggest impact of these restrictive laws could be to deter infrequent voters by conveying the message — in most cases, false — that voting is arduous and there’s an organized effort to stop you from going to the polls.

“Those messages are going to make it less likely for an infrequent voter to show up,” said Becker, noting that Trump allies’ claims that the system had been rigged by widespread illegal voting may have worked to depress Republican turnout in the 2021 Georgia U.S. Senate runoffs.

“The best way to suppress a vote is to get the voter to suppress themselves.”

Election administration troubles

It’s worth remembering that, despite the chaos and violence of the post-election period in 2020-21, the voting itself confounded some predictions by going remarkably smoothly.

Facing the twin challenges of a pandemic and a concerted campaign by the incumbent to sow distrust over fraud, election administrators nationwide provided an accessible, secure process that featured the highest turnout since the 1890s — a genuine triumph of democracy.

Still, three years later, the U.S. elections infrastructure is under strain. A mass exodus of local election officials, caused in part by a barrage of threats and intimidation from denialists, has made headlines and sparked concern.

Pennsylvania, North Carolina, Virginia, and Texas are all said to have had top officials leave. And a recent report by the good-government group Issue One found that 160 chief local election officials in 11 Western states — around 40% of all chief local election officials in those states — have left their jobs since November 2020.

The report singled out the region’s two swing states, Arizona and Nevada — both hotspots for denialism and threats of violence against administrators — as especially hard hit by the departures.

“As a former county recorder myself, I can attest that the pre-2020 world for election administrators is gone,” Arizona Secretary of State Adrian Fontes said at a Nov. 1 U.S. Senate hearing. “We don’t feel safe in our work because of the harassment and threats that are based in lies.”

Fontes, a Democrat, called the issue a “threat to American democracy.”

But, while everyone agrees threats and harassment targeting election officials are a serious concern, fears about the impact on 2024 may be overblown.

Becker, who works closely with election officials across the country, noted that in both states, the key counties that have seen departures have found effective replacements. In Arizona, both Maricopa and Pima counties have elected recorders who have prioritized nonpartisan election management and voter access. And when the respected elections director for Clark County, Nevada stepped down, he was replaced by a deputy who had worked in the office for 25 years.

“Although I have many concerns about the election, one of them is not whether the election officials are going to manage an accessible, secure process,” said Becker. “I think election officials will do what they have always done, which is to rise above this and provide an easy convenient way for all eligible voters to vote, and a transparent method for counting those ballots that stands up to scrutiny.”

Still, the task of administrators could be complicated by the presence at the polls of self-appointed voter fraud watchdogs. Responding to Trump’s lies about illegal voting, conservative activists are mobilizing to scour the voting process for evidence of irregularities.

One nationwide coalition of groups organized by a top Trump election lawyer, the Election Integrity Network, is working to recruit and train activists to serve as poll-watchers and on local elections boards. In Virginia’s 2021 election — the first contest where the group was active — it trained 45,000 poll watchers and officials and covered 85% of polling places, it has said.

Voting rights advocates worry that aggressive poll-watchers could intimidate voters or overwhelm officials with meritless voter challenges, slowing down the voting process.

Democrats are blunter. “The goal is to disenfranchise enough voters that they can win the election,” a staffer for the Virginia Democrats told the New York Times in reference to the group’s activities in the state’s current election.

Yet more potential problems

These are far from the only things that could go wrong. One wildcard that’s causing concern is the possibility of a “contingent election”.

The “No Labels” party has launched a well-funded campaign in support of a bipartisan “unity ticket’. If it succeeds in winning one or more states, the upshot could be to deny either major-party candidate 270 electoral votes. Even if No Labels fails to win a state, an Electoral College tie would also leave both candidates one vote short of 270.

If no one reaches 270, the Constitution requires Congress to choose the president. But no law governs how that process would work. The result, two advocates for Protect Democracy wrote recently, based on conversations with constitutional scholars, would be “chaos and crisis.”

Another threat that’s causing alarm among some election security advocates stems from the multi-state effort by Trump allies to access software used in voting machines. In Colorado, Pennsylvania, Georgia, and Michigan, activists worked with election officials or law enforcement to gain access to the software.

Most experts say it isn’t likely that they could change votes at a scale large enough to affect the outcome of a presidential election — in part because every swing state now uses paper ballots as a backup so that results can be verified.

The more realistic worry is that hackers could draw attention to a breach in order to stoke anger and controversy, giving the election loser additional ammunition to claim that the result was rigged. That might not subvert results, but would help undermine the election’s legitimacy in the eyes of some voters.

One leading democracy advocate has a very different fear: that the election will be legitimate, but that its result will nonetheless put our system of government at risk.

“We are not out of the woods, but that danger (of election subversion) has been greatly reduced,” Ian Bassin, the founder and executive director of Protect Democracy, and the recent recipient of a MacArthur “genius” grant, said in an October podcast interview.

“The bigger danger is that an autocrat will simply win the 2024 election.”

The post One year out: how a free and fair 2024 presidential election could be under threat appeared first on New Jersey Monitor.

In September, the GOP-controlled Wisconsin state senate voted to oust Meagan Wolfe as the head of the Wisconsin Elections Commission. Wolfe was the target of false conspiracy theories about illegal voting during the 2020 election, but she has refused to step down. (Henry Redman/Wisconsin Examiner)

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COLUMBUS, Ohio — MAY 10: Hundreds of protesters against SJR 2 fill the rotunda before the Ohio House session, May 10, 2023, at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal)

Abortion-rights supporters filed a lawsuit Monday against what they call “deceptive” ballot language produced by Ohio officials for the state’s closely-watched upcoming referendum on the issue.

But it isn’t just the Buckeye State that’s lately seeing fierce battles over the once-obscure topic of ballot language.

In recent weeks, officials in Missouri — where another abortion-rights measure is at issue — and Idaho also have been accused in lawsuits of seeking to thwart citizen initiatives they oppose by using biased and negative ballot language to describe the issue to voters. Arkansas last year saw a similar court fight after a state board rejected a proposed ballot measure that had gained the required number of signatures, claiming the ballot language didn’t explain the issue in enough detail.

Direct democracy advocates see these language disputes as another tactic in the larger war on ballot initiatives playing out across the country. As States Newsroom has reported, in recent years a slew of states has tried to crack down on ballot measures by imposing more onerous signature requirements or raising the threshold for voter approval above a simple majority, among other steps. It’s no coincidence that in all four of the states where controversies over ballot language have flared most prominently, Republican lawmakers have tried other tacks — so far unsuccessfully — to restrict ballot measures more broadly.

Even if misleading ballot language ultimately gets thrown out by the courts, advocates say, these fights can raise the costs of bringing initiatives by requiring supporters to engage in lengthy litigation. And in some states, signature-gathering can’t start until ballot language is approved — meaning delays caused by fights over language can eat into the limited timeframe that organizers have to get the necessary signatures.

“This has been an escalating effort to attack ballot titles,” said Sarah Walker, director of legal and policy advocacy at the Ballot Initiative Strategy Center, which provides support for progressive ballot measures. “It’s just more of a long trajectory of efforts to undermine the will of the voters. And it shows how far politicians who are out of step with voters are willing to go to consolidate their power.”

The claims of biased language also raise questions about the role of secretaries of state and other state officials in administering the ballot measure process. Though they may support or oppose ballot measures, there has long been an expectation that state election officials must perform their duties fairly and impartially — just as they’re expected to do when running conventional elections involving candidates.

But in the current hyper-partisan political climate, that expectation may be breaking down, leaving good-government advocates concerned.

“A politicized, partisan secretary of state can completely distort public understanding of a ballot question through their control of the summary language,” said Kevin Johnson, executive director of Election Reformers Network, which backs reforms aimed at removing partisanship from election administration (Disclosure: This reporter worked for several months in 2022 as a communications consultant for ERN). “We would never accept a referee playing for one team in sports and we shouldn’t in elections either.”

Johnson pointed to Missouri, where Secretary of State Jay Ashcroft, a Republican who opposes abortion rights, last month approved a ballot title that asks voters if they want to protect “dangerous, unregulated, and unrestricted abortions, from contraception to live birth.” The title also asks voters if they want to “nullify longstanding Missouri law protecting the right to life.”

A lawsuit filed by Missouri’s ACLU chapter seeks to require Ashcroft, who is running for the GOP nomination for governor, to use more neutral wording.

The skewed language came after Republican-authored legislation that would have required ballot initiatives to gain 57% approval, rather than a simple majority, unexpectedly died in the state Senate in May, after passing the House. Lawmakers have pledged to try again next year, saying the goal is to thwart the abortion-rights measure.

A proposed constitutional amendment, for which a petition was filed recently with the state by a grassroots organizing group, aims to protect Missouri’s ballot initiative process. Among other steps, it would ensure that ballot titles “express the true intent and meaning” of the measure at issue.

Events in Ohio have followed a strikingly similar pattern. First, lawmakers drafted a ballot measure, Issue One, that aimed to make it harder to use ballot initiatives to amend the state constitution by requiring 60% voter approval, among other steps. Secretary of State Frank LaRose, who is running in a competitive Republican primary for the U.S. Senate nomination, told fellow GOPers the change was needed to stop a proposed amendment protecting abortion rights.

In his official role, LaRose approved ballot language for Issue One that said the measure would “elevate the standards” for constitutional amendments — wording that Issue One opponents called overly positive.

After voters overwhelmingly rejected Issue One earlier this month, Republicans tried another approach to stop the abortion-rights measure, which voters will decide in November.

On a 3-2 party-line vote, the state Ballot Board, which is chaired by LaRose, approved a ballot summary drafted by his office which uses the term “unborn child” in place of the more medically accurate “fetus.” The summary also tells voters that the amendment would “always allow an unborn child to be aborted” if a doctor decides it’s medically necessary. The actual language of the amendment would bar such an abortion unless the patient agrees to it.

At the meeting to vote on the language, one Republican board member called the abortion-rights amendment “dangerous” and pledged to fight “tirelessly” against it.

“The Ballot Board’s members adopted politicized, distorted language for the amendment, exploiting their authority in a last ditch effort to deceive and confuse Ohio voters ahead of the November vote on reproductive freedom,” Lauren Blauvelt of Ohioans United for Reproductive Rights said in a statement.

In Idaho, it’s not abortion rights at issue. But the larger contours of the dispute are familiar.

Organizers of a proposed ballot initiative to create open primaries are suing Attorney General Raul Labrador over the ballot title his office produced. The title tells voters that the measure would “replace voter selection of party nominees with nonparty blanket primary.”

In fact, supporters of the initiative said, voters would still choose nominees. But instead of having closed primaries in which only members of the major parties can vote, everyone would get to vote and the top four finishers, regardless of party, would advance to the general election.

Labrador, a Republican, hasn’t sought to hide his opposition to the measure. “Let’s defeat these bad ideas coming from liberal outside groups,” he tweeted in May.

After being ordered to do so by the Idaho Supreme Court, Labrador submitted new titles that were then certified by the court, but the delay caused by litigation could prove fatal to the measure’s chances, supporters say.

“[I]t shortens the already limited time to circulate the initiative petition for signatures,” they wrote in court filings. “This delay alone may doom the possibility of the initiative reaching the ballot.”

Idaho’s legislature has for years sought to restrict ballot measures. In March, a resolution that would have imposed stiffer signature-gathering requirements for ballot initiatives passed the state House by 39-31 but failed to win the two-thirds majority needed to go to voters. In 2021, Idaho’s Supreme Court struck down a similar measure passed by lawmakers.

In Arkansas, things played out a bit differently. Last year, the State Board of Election Commissioners rejected a ballot measure to legalize recreational marijuana, saying that the ballot language didn’t adequately explain the proposal. For instance, they said the measure didn’t tell voters that it would repeal the state’s limit, under its medical marijuana law, on how much THC is allowed in edible marijuana.

A lawyer for the coalition backing the measure said that level of detail “simply is not workable for a ballot.”

After a legal challenge, the measure was approved for the ballot, but it was rejected by voters.

Arkansas voters also rejected an effort by lawmakers to make ballot measures harder to pass. Like Ohio’s Issue One, it would have required a 60% threshold for approval.

State officials who have tried to use misleading language to boost their side have more often lately been looking to defeat, rather than help, a ballot initiative. But the same scheme is sometimes used to boost a measure’s chances.

Language written by Republican lawmakers in Kansas for last year’s high-profile effort to ban abortion in the state said the measure would “reserve to the people the right to regulate abortion.” It also said the measure would “affirm there is no constitutional right to abortion or to require the government funding of abortion.”

In fact, the state Supreme Court had previously found that there is a right to abortion, meaning the measure would have taken it away. And government funding of abortion was already illegal.

“The language was very misleading,” said Rachel Sweet, an abortion-rights advocate who played a key role in the successful campaign to defeat the Kansas measure. “We really had to clearly define for people what that amendment was actually trying to do.”

There is some evidence that how a ballot measure is worded can affect the level of support it receives. A 2021 study found that people were almost twice as likely to back a hypothetical tax increase to fund education when it was described as an additional “one cent per dollar,” compared to when it was described as “a 22 percent increase.”

“As a general matter,” wrote the study’s author, University of Georgia political scientist Ted Rossier, “state institutions that are responsible for writing ballot questions, as well as the courts that hear challenges thereto, must remain mindful of the potential for nefarious manipulation of the process.”

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The post Not just Ohio: Biased language is the hot new tactic to thwart ballot measures appeared first on New Jersey Monitor.