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America’s Electoral Playbook: Changing the Rules of the Game

Three questions to Lawrence Norden and Ian Vandewalker

America’s Electoral Playbook: Changing the Rules of the Game
 Lawrence Norden
Senior Director of the Elections and Government Program
 Ian Vandewalker
Senior Counsel for the Democracy Program

In the shadow of the Trump presidency and January 6 Capitol riot, America’s political polarization is deepening, illuminating the fragility of a Constitution that is meant to ensure free and fair elections for all. The fact that the US Constitution leaves it up to States to organize, count, and verify electoral votes means that there are almost as many electoral systems as there are States. For many, Trump’s inability to hold on to power in 2020 signaled that, despite suffering brutal blows, the constitutional system of checks and balances was still working. Yet, efforts are already underway to undermine the 2024 elections, with partisan state actors carefully plotting to change election laws, restrict ballot access, capture electoral administration, and criminalize the work of election officials. Lawrence Norden, Senior Director of the Elections and Government Program at the Brennan Center, and Ian Vandewalker, Senior Counsel for the Democracy Program at the Brennan Center, consider how the rules of America’s electoral playbook are changing. 

The Brennan Center for Justice is an independent, nonpartisan law and policy organization at NYU’s School of Law that focuses on democracy, criminal justice, liberty, and national security. The Trump presidency and January 6 insurrection did expose cracks in the foundation of the American democratic system. Such events have highlighted the critical role that election officials play in ensuring free and fair elections in the United States. You recently launched a series of reports focusing on the financing of political campaigns for offices overseeing the elections. Could you tell us why this is a new kind of study for you, and present the main findings of your first report

For decades, the Brennan Center has documented how and where money is spent in political contests, whom it has been used to support, and with what messages. Our focus has been wide-ranging: from the races for the presidency and Senate to state and local judicial elections. For the first time this year, we will train our sights on the finances and political messages in what we have determined to be among the most important contests for the future of election administration. Unlike many other democracies, elections in the United States are highly decentralized and in many states, counties and cities, the chief election administrator is elected.

This year, thousands of Americans will seek to elect positions that will directly control how future elections, including the next presidential election, are administered and certified.

Today, political leaders in both parties have argued that the future of our democracy depends on having the "right" people in these offices, dramatically raising the stakes for a variety of races.

In past years, many Americans would have taken it as a given that elections would be administered in a nonpartisan manner, regardless of which candidate took office. That changed in 2020 when election officials became the focus of a disinformation campaign meant to undermine faith in American democracy and cast doubt on election results. Today, political leaders in both parties have argued that the future of our democracy depends on having the "right" people in these offices, dramatically raising the stakes for a variety of races. In our series "Financing of Races for Offices that Oversee Elections", we look at how this dangerous climate is playing out in contests across the country.

The chief election official in most states is the Secretary of State. This year, we are tracking the remarkable rise in fundraising the secretary of state elections. Across key battleground states like Arizona, Georgia and Michigan, contributions are three times higher than they were at this point in the 2018 cycle, and eight times higher than 2014. 

These state races are also becoming nationalized. In the past, they have typically been sleepy affairs, and candidates have mostly raised money from residents within their states. This year, we are seeing significantly more money flowing in from out-of-state, sometimes from big national donors.

As an example, Arizona State Rep. Mark Finchem (R) is running for his state’s secretary of state. His campaign sent an email announcing his bill to "decertify three 2020 county elections" in the state, and he has attracted over six times the number of donors than all the candidates in the state’s 2018 election. Two-thirds of Finchem’s donors live outside Arizona. In Michigan, out-of-state contributions to secretary of state candidates have soared to $475,000 so far this cycle, three-and-a-half times the amount at this point in 2018 and 90 times that of 2014.

Overall, we found that the issue of election denial remains a central campaign topic for candidates on both sides of the aisle in these key election administrator contests, with some candidates questioning the legitimacy of the 2020 election, and others highlighting such views as an existential danger to American democracy.

Now that the Democrats' voting rights bills failed in the Senate, is there anything that the Biden administration could do at the executive level? 

Voting rights and free and fair elections are under assault in the United States. State legislatures and the courts undermine our core democratic institutions when they create and uphold laws that limit access to voting and interfere with nonpartisan election administration. 

In 2021, more than 440 bills with provisions that restrict voting access were introduced in 49 states, and 19 states signed 34 of them into law. By January 14, the 2022 legislative session saw legislators in at least 27 states introducing, pre-filing, and carrying over 250 bills with restrictive provisions. In keeping with restrictive voting laws passed last year, state legislators have resumed their assault on voting rights with legislation that, if enacted, would disproportionately impact voters of color. The president has limited powers to push back against these efforts without Congress. Ultimately, given the separation of powers in the United States, the only solution to such a widespread attack on voting rights is congressional legislation.

State legislatures and the courts undermine our core democratic institutions when they create and uphold laws that limit access to voting and interfere with nonpartisan election administration. 

Congress clearly has the power to do so. We cannot stop fighting for broad voting rights legislation - we can’t safeguard democracy without federal action. It is one of the most important moral fights of our time in this country.

Having said that, there are smaller steps the Biden administration can take without Congress. The President can increase funding for elections within his budget, and fully engage federal agencies to promote fair elections by robustly enforcing voting rights, protecting election officials under threat, taking steps to safeguard our election infrastructure from cyberattack and expanding voter registration to clients of all federal agencies.

Indeed, President Biden initiated executive action last year when he signed an executive order promoting voting access and enlisting federal executive branch agencies "to expand access to, and education about, voter registration and election information, and to combat misinformation". Under this order, each executive branch agency has already devised a plan particular to its own programs, and there are also specific efforts targeting access for voters with disabilities, active duty military and overseas citizens, eligible individuals in federal custody and Native Americans. 

More must be done to protect election officials, one in three of whom reported feeling unsafe because of their job last year. The Department of Justice’s task force to combat threats against election workers has made two arrests since its formation in 2021; the DOJ must continue to expand these efforts to protect public officials from the onslaught of harassment and threats. 

The Cybersecurity and Infrastructure Security Agency - an executive branch agency - should also expand its efforts to protect election officials, and our election infrastructure, from physical and cyber attacks. 

While far-reaching voting rights legislation remains the best option for strengthening our democracy, the steps outlined above can enact meaningful change. 

We hear a lot about Republicans passing restrictive voting laws in various states ahead of the November 2022 midterms and the 2024 election. What are, in your opinion, the most dangerous voting laws for American democracy in the upcoming 2022 and 2024 elections? 

The trend itself is alarming and exceedingly dangerous, and these laws often explicitly target communities of color. Despite significant gains in overall voter participation, the turnout gap between white and non-white voters is virtually unchanged since 2014. In fact, it has grown since its modern-era lows in 2008 and 2012. 

During the same period, racially discriminatory voter suppression entered a new era. After the 2010 elections - for the first time since the peak reached during the Jim Crow era - states across the country began to enact laws making it more difficult to vote. This wave of voter suppression was intertwined with race and the nation’s changing racial demographics. It was, at least in part, a backlash against rising turnout among communities of color contributing to the election of the nation’s first Black president.

The newest concern is legislation that enables partisan interference in election administration, part of a broader "election sabotage" movement that threatens to distort democratic outcomes.

The newest concern is legislation that enables partisan interference in election administration, part of a broader "election sabotage" movement that threatens to distort democratic outcomes.

This election sabotage movement includes legislation to give state officials the power to change or reject election results; legislation to give partisan state officials the power to seize control of the election administration and vote-counting processes; and legislation to restrict, control, or punish the conduct of election officials. At least three states have passed, and at least 10 more have considered bills that would indirectly sabotage the democratic process, by allowing political partisans to seize control of certain aspects of election administration typically handled by professional election personnel. This legislation officially makes it easier for partisans to accomplish what many of them attempted unsuccessfully in 2020 - throwing out legitimate votes. 

Legislators in at least 17 states have introduced a long list of bills that permit partisan punishment of election officials and increase the power of partisan poll watchers. By imposing chilling criminal and civil penalties, as well as pointless restrictions, these bills are accelerating the mass exodus of experienced, professional election officials from their jobs, opening the door to further partisan influence in election administration.

Most worryingly, state legislators introduced at least 10 bills in seven states during the 2021 legislative session, which would have directly empowered partisan officials to change or overturn election results. A recently introduced bill in Arizona would allow the legislature to reject the results of an election on a post-election day special session. Legislators in Missouri and Nevada introduced similar bills last year, and Texas legislators introduced a bill that would have allowed individual judges to throw out election results if they perceived evidence of a certain number of supposedly illegally cast votes. While these most troubling bills have not been enacted, their introduction into state legislatures across the country reveals the increasing number of political leaders who are turning their backs on our democracy. 

In spite of all this, the American public remains committed to the principles of democracy. The biggest hurdle remains communicating the stakes of this fight, and why these actions by state legislatures to restrict voting rights, criminalize election officials and threaten nonpartisan election administration are attacks on democracy itself. The Brennan Center conducts many of our studies with this exact goal in mind: arming the public with the critical data they need to cast informed votes.


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