Introduction: The Attack on Vote-By-Mail
President Trump’s hostility to vote-by-mail is intensifying. In a Politico interview on June 18, he said his “biggest risk” of losing the election would be his failure to stop widespread use of mailed ballots. The next day, Attorney General Barr echoed the theme in a Fox Business interview: “But when governments, state governments, start adopting these practices like mail-in ballots that open the floodgates of potential fraud, then people’s confidence in the outcome of the election is going to be undermined.” Then, in an NPR interview on June 25, the Attorney General went even further, answering “no” to whether “an election conducted mainly by mail can be secure” — thereby implying that vote-by-mail is inherently untrustworthy.
President Trump’s attack on the election has even gone beyond the specifics of vote-by-mail. He has stated categorically that he can lose the election only if it is “rigged” against him — not willing, in other words, to accept that a loss might actually be the verdict of the voters. He has also threatened to put “sheriffs” and other “law enforcement” officers at polling places even though it would be unlawful to do so. Still, his biggest assault on the voting process has been his incessant claim that vote-by-mail will cause Democrats to deny him reelection.
President Trump and Attorney General Barr can continue to attack the use of vote-by-mail ballots for November’s election, but the rules were largely set even before the pandemic struck, and they are unlikely to change significantly before voting actually begins in a few weeks. Key battleground states — including Michigan, Pennsylvania, and Wisconsin (the three that Hilary Clinton lost so narrowly in 2016) — all currently have “no excuse” vote-by-mail laws, which means any eligible voter in the state has a right to choose according to the voter’s own preference (and without need for any additional justification) a mail-in ballot rather than voting in-person. Consequently, there is every reason to expect that when Americans vote in this fall’s presidential election, many millions of them will be voting by mail despite President Trump’s efforts to the contrary.
But will these mailed ballots be counted? That is a separate question. Answering it shows the acute vulnerability to mischief of the constitutional and congressional rules for conducting presidential elections.
The following exercise in “what if” imagination is not offered on the grounds that any of its specific scenarios are likely to happen — readers can assess the odds for themselves — but instead to point out basic vulnerabilities in the nation’s existing constitutional and statutory framework for handling this kind of situation if it were to occur. Identifying risk is the necessary first step to evaluating what steps, if any, can and should be taken to mitigate the risk. In the absence of constitutional or statutory reform, moreover, there is inevitable need to rely on norms and not just law as part of any risk mitigation strategy, and that is a key lesson of this “what if” analysis.
The Risk That Ballots Might Never Be Counted
How could mailed ballots not be counted if they are valid under state law and thus required to be counted before final certification of total votes for each candidate in an election? There are three possibilities to consider. First, it is conceivable that Attorney General Barr may attempt to seize possession of cast mailed ballots, to prevent them from being counted, on the grounds that including them in certified vote totals would violate the federal constitutional rights of voters who cast in-person ballots. Second, President Trump could use the military to seize these ballots. Third, private actors could manage to destroy the ballots before they are able to be counted.
First. Even if President Trump fails in stopping the use of vote-by-mail ballots before they are cast, Attorney General Barr could claim authority to impound ballots that he asserts may be evidence of fraud. The Supreme Court has long held that Congress has the authority to make fraud in a federal election a federal crime. The relevant statutes are still on the books, and thus Barr could assert a basis for enforcing them.
At the same time, however, Congress has chosen to let states administer federal elections, including the counting of ballots and certifying the results. It would be an extraordinary interference with the role that state and local election officials have to complete the tallying of votes and the declaration of winners for Attorney General Barr to take possession of mailed ballots in a way that would prevent the completion of this counting and certification process pursuant to state law. In fact, the DOJ Manual for the Prosecution of Election Offenses explicitly declares (at page 84) that “overt criminal investigative measures should not ordinarily be taken in matters involving alleged fraud in the manner in which votes were cast or counted until the election in question has been concluded, its results certified, and all recounts and election contests concluded.” Thus, if Attorney General Barr were to be so brazen as to attempt seizure of mailed ballots before they could be counted, there is a high probability that state and local election officials would be able to secure a court injunction that would block Barr from interfering with the counting process.
Second. Judicial relief would not be so readily forthcoming if President Trump used military rather than law enforcement powers to seize mailed ballots before they can be counted. In Gilligan v. Morgan, the Supreme Court held that supervision of the National Guard was beyond the scope of judicial power because of the “political question” doctrine. While that precedent might be distinguishable in some specific instances of improper presidential interference with state procedures for counting ballots, it is still difficult to rely upon the ability of a court to stop military maneuvers that might result, whether intentionally or inadvertently, in the destruction of mailed ballots that await counting.
How could we imagine this occurring? Suppose, for example, that in Michigan President Trump leads at the end of Election Night based on the ballots counted up to that point. There remain, however, many thousands of mailed ballots that could not be counted by then (as was expected), and based on the demographics of the voters who cast these mailed ballots — including many residents of Detroit — the networks all project that Vice President Biden will overtake President Trump’s lead as additional ballots get counted in the ensuing week. Starting immediately on the morning of November 4, however, armed pro-Trump supporters agitate for the destruction of these uncounted mailed ballots. (Some of these armed protestors had participated in the burning of absentee ballot applications previously.) Counter-protestors begin to congregate as well, demanding that the mailed ballots be counted properly according to the provisions of state law. President Trump, invoking the Insurrection Act and claiming to prevent civil disorder from getting out of hand, sends in the military to take possession of the disputed ballots. Michigan’s Governor Whitmer objects, but President Trump overrides her objection, as he is entitled to do under the Insurrection Act. In all the commotion that follows as the federal troops move in pursuant to this presidential order, somehow all the mailed ballots stored in Detroit get destroyed and thus cannot be counted.
We must hope that this farfetched scenario never materializes. We can hope, too, that if President Trump ever were to issue this kind of military order, officers in the chain-of-command would decline to obey. Reaction of both current and former Pentagon officials to President Trump’s improper use of the military on June 1 in connection with the protests over George Floyd’s murder, including President Trump’s altogether inappropriate campaign-style photo op outside St. John’s Church in Lafayette Square, helpfully indicates that there are limits to what the military will obey (The chairman of the Joint Chiefs of Staff, Gen. Mark Milley, told members of Congress in a letter that he “foresee[s] no role for the U.S armed forces in the process” if there is “a dispute over some aspect of the elections.”). Still, it is precarious to think that the “rule of law” — whether judicially enforced or self-enforced by the military — is capable of constraining a president hellbent on misusing military power to destroy ballots that, if counted, would cause his reelection defeat.
Third. The destruction of mailed ballots could occur without any presidential, or other form of federal government, involvement. While it would entail a significant lapse of security on the part of local officials, it is conceivable to imagine private actors perpetrating the destruction of ballots before they are capable of being counted. Imagine a situation where a mob of pro-Trump agitators storm the building where Detroit’s mailed ballots are being stored on the morning of November 4 and, overwhelming whatever police protection is on site at the time, set these ballots ablaze.
Once destroyed, these ballots cannot be counted. What then?
Congress has provided that if a state “has failed to make a choice” in a popular vote to appoint its presidential electors “on the day prescribed by law,” then “the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct.” It might be debatable whether the exact language of this statute applies to a situation in which the state undoubtedly held the popular vote to appoint presidential electors on November 3, but it was the subsequent destruction of ballots in that election that prevented accurate identification of the election’s winner. However, if the state cannot declare the winner of an election it has held, because outcome-determinative ballots have been destroyed before being counted, that situation is tantamount to having failed to conduct the election in the first place. The state certainly has “failed to make a choice” that is capable of being ascertained. Thus, were this situation to arise, it is easy to imagine a state legislature invoking the congressional statute to authorize it to appoint presidential electors directly without an attempt to hold a second popular vote to do so. That way the state would be certain to have electors to cast votes for president on the congressionally designated day of December 14.
The state’s governor, or secretary of state, might attempt to exercise emergency powers to hold a second vote of some sort, to replace the destroyed mailed ballots. But in the face of the state legislature’s assertion of a prerogative to appoint the state’s electors itself in this “failed” election situation, it seems unlikely that the contrary wishes of the governor, or secretary of state, would prevail. For one thing, the state’s judiciary — or even the federal courts — might side with the state’s legislature in this power struggle. For another, conditions of civil unrest flowing from the destruction of the ballots might make it impracticable to hold a second popular vote, especially in time to meet the December 14 deadline. In any event, let us assume that for whatever reason no such second vote has taken place, and the only electors appointed by the state are the ones that the legislature itself appointed directly in the aftermath of the “failed” election caused by the destruction of the ballots.
The crucial question, then, becomes: What would, or should, happen to this single submission of electoral votes from Michigan after it arrives in Congress to be considered on January 6 at the special proceeding pursuant to the Twelfth Amendment for the purpose of opening and counting all the electoral votes from the states?