The Constitution and Election Law

Previous posts have discussed authoritarian moves by the executive branch.

U.S. District Judge Indira Talwani, found the new Postal Service rule on mail-in ballots is likely unlawful and unconstitutional,

The Elections Clause of the Constitution provides: 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of ch[oo]sing Senators. U.S. CONST. art. I, § 4, cl. 1. 

“[T]hese comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, [and] counting of votes[.]” Smiley v. Holm, 285 U.S. 355, 366 (1932). “In practice, the Clause functions as ‘a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices.’” Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 9 (2013) (quoting Foster v. Love, 522 U.S. 67, 69 (1997)). “Because the power the Elections Clause confers is none other than the power to pre-empt, the reasonable assumption is that the statutory text accurately communicates the scope of Congress’s preemptive intent. . . . Unlike the States’ historic police powers, the States’ role in regulating congressional elections . . . has always existed subject to the express qualification that it terminates according to federal law.” Id. at 1415 (citation modified).  

 Accordingly, as to the time, place, and manner of federal elections, the Elections Clause “grants Congress ‘the power to override state regulations’ by establishing uniform rules for federal elections, binding on the States.” Foster, 522 U.S. at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832–33 (1995)).13  

...

The Constitution does not grant the President any specific powers over elections.14 Broadly, the Constitution vests the President with “executive Power” and commands him to “take Care that the Laws be faithfully executed[.]” U.S. CONST. art. II, §§ 1, 3. The President “plays no direct role in the process” of appointing electors, “nor does he have authority to control the state officials who do.” Trump v. United States, 603 U.S. 593, 627 (2024). As the Supreme Court has observed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Medellín v. Texas, 552 U.S. 491, 526–27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). 

Noncitizens on the Voter Rolls?

Many posts have discussed immigration. Illegal voting by noncitizens is rare.

 Last night, Trump claimed there were 278,000 noncitizens who had registered to vote.  At PolitiFact, Louis Jacobson provides reasons for skepticism.

Experts cited several reasons to be cautious about the headline number and how Trump and Mullin framed it.

For starters, Homeland Security’s letters to state officials used more cautious language — glossed over in public remarks by Trump and Mullin — that called it a "preliminary review" and said that there "may be as many as" the number of noncitizens they found on the voter rolls.

At his press conference, Mullin did not identify the individuals as potential noncitizens; he simply called them "noncitizens."

Another reason for caution is history.

In the past, when government officials have announced initial numbers of noncitizens on voter rolls, those figures have dropped dramatically after months of vetting by state and local officials and the media.

In 2012, then-Florida Gov. Rick Scott ordered state officials to clear the rolls of noncitizen voters ahead of the election.

Florida initially assembled a list of about 180,000 potential noncitizens. With more scrutiny, however, officials whittled the count to about 2,600 names, then 198, then 85. The initial list was rife with errors, even flagging a Brooklyn-born World War II veteran.

Threats and Turnover of Election Officials

Many posts have discussed political violence..

 From Issue One:

In the five years since the monumental 2020 presidential election cast an intense spotlight on election administration processes, the public servants from across the ideological spectrum who run our elections have weathered a deluge of threats, harassment, heightened stress, and increased scrutiny that does not yet show signs of abating.

 According to a new Issue One analysis that illustrates an alarming nationwide trend, 50% of chief local election officials in the nation’s Western states have left their jobs since November 2020, often leaving their positions partway through their terms for personal reasons. 

This finding builds on our September 2023 study, which uncovered that roughly 40% of chief local election officials in the Western United States had left their positions since the 2020 presidential election — departures that left half of the region’s roughly 80 million residents with new officials running the 2024 elections in their communities. This study also reinforces findings by the Bipartisan Policy Center that turnover among chief local election officials has increased steadily since 2000 — and has been increasing faster since 2020.

Election Guardrails

Many posts have discussed the legal aspects of elections.

 Richard Pildes at Election Law Blog:

As we get closer to the election, we will see numerous about various ways partisan actors might try to corrupt the outcome. A recent essay Neal Katyal authored in the New York Times is a good illustration of these anxieties. Katyal raised several nightmare scenarios for “a potential election crisis” under which, in his view, corrupt partisan actors could seek to deprive Vice President Kamala Harris of a lawful victory, if in fact she wins the election.

I’ve posted this essay on Lawfare going point by point through the scenarios Katyal raises to explain the legal, institutional, and political guardrails in place to thwart various efforts to corrupt the outcome of the election. This is a companion essay to the recent ELB post I did here, explaining in more specific legal terms how the bipartisan Electoral Count Reform Act works.

My Lawfare essay is too detailed to excerpt easily, but here’s how it concludes:

Post-voting partisan efforts to manipulate the process could undermine public confidence, be disruptive, and even lead to civil unrest. But there are many more mechanisms in place than a lot of anxious public commentary recognizes to ensure the lawful outcome of the 2024 election.

Legal Challenges to the Harris Nomination

 Some Republicans want to mount a legal challenge to the nomination of Kamala Harris.

They have no case.

Stef Kight at Axios:

Biden was "not the official nominee—nobody is, until there's a vote. So Biden need not be replaced, because he was never the official candidate," legal scholar Rick Hasen wrote in an op-ed on Monday.

"There is a zero point zero, zero, zero percent chance that Mike Johnson and his fever dream of somehow there being legal action to prevent Kamala Harris... to keep [her] off the ballot, there is no chance that will happen," top Democratic attorney Marc Elias said on Democracy Watch, a Youtube series hosted by Brian Tyler Cohen.

The bottom line: Hasen noted that Democrats "would be smart to still do that virtual roll call by Aug. 7" to avoid any potential litigation in some states related to technical arguments around ballot access timing.

People are talking about John Eastman's goofy legal theory that argues Kamala Harris can't be president because she's not a "natural born citizen."

Many have rebutted his legal theory, but I focus on the facts he got wrong.https://t.co/OrTANm1q2v

— The Alex Nowrasteh (@AlexNowrasteh) July 23, 2024

Illegal Noncitizen Voting is Vanishingly Rare

Many posts have discussed immigration.

At Axios, Stef Kight explains that illegal voting by noncitizens is extremely uncommon:

Non-citizen immigrants are barred by law from voting in federal elections. The very few who try it typically do so by accident, and are caught. The penalties can be severe, and include prison time or deportation.

Voting as a non-U.S. citizen "is a federal crime ... a removable offense, meaning that you can be deported," Sean Morales-Doyle, director of the Brennan Center Voting Rights Program, told Axios.

"The stakes are really, really high. And it's really easy to figure out that you did it," Morales-Doyle said.

Undocumented immigrants in particular are widely known to steer clear of giving out personal information or registering for anything involving U.S. and state governments, out fear of facing arrest or deportation.Some have even avoided public services they're entitled to, such as food stamps or housing benefits.

...

When non-citizens have ended up on voter rolls it's often by accident — not part of any conspiracy to affect an election, Morales-Doyle said.There have been several cases in which DMV officials have mistakenly led non-citizens to register to vote under "motor voter" policies.

Zoom in: Republicans seeking to justify claims of illegal voting by immigrants point to a few reports and probes that purported to have found large numbers of non-citizens who registered to vote or voted. Those claims wilted under scrutiny.In 2019, Texas began investigating what GOP officials claimed were as many as 100,000 non-citizens on the state's voter rolls. The alleged number of illegal registrants ticked down as the claims were examined. The investigation fizzled, and eventually a federal judge killed the probe, saying it was infringing on eligible voters' rights.

On the heels of Trump's first campaign for president in 2016, the Brennan Center for Justice examined about 23.5 million votes in 42 jurisdictions, looking for evidence of the illegal voting by non-citizens that Trump had claimed was prevalent. It found about 30 suspected illegal votes.

NPP and DMV

Registering as an independent or "no party preference" does not necessarily reveal much about voter preferences.  Philip Reese reports at the Sac Bee that a surge in NPP registration was largely an artifact of the process:

In the mid-2010s, California passed a “motor voter” law that automatically registered people getting a driver’s license or ID at the DMV, as well as those changing their address — unless they opted out of registration.

Voter registration boomed, rising by nearly 5 million, or 28%, from January 2016 to October 2023.

At first, a huge proportion of the new voters registered as “no party preference.”

When [Paul] Mitchell explored why, he noticed that the DMVs registration form asked residents if they wanted to pick a political party. If they answered “yes,” it would take them to another page where they would choose their party.

“You had to actively say, ‘I want a party,’” he said.

The problem, Mitchell and others said, is that many people don’t like standing in front of a computer at the DMV. To get away quickly, many chose “no.”

“The default dumped them into this big pit of no party preference voters,” said Wesley Hussey, professor of political science at Sacramento State.

The DMV changed the process in 2019, Mitchell said. Instead of asking voters if they wanted to pick a party and then asking them to pick a particular party on a new screen, the DMV created a dropdown menu that immediately allowed voters to choose a party. “Republican” and “Democrat” were on the dropdown list, along with third parties. Voters also have a nearby option for “no party preference.”

The effects were immediate.

In December 2018, before the change went into effect, about 53% of voters who registered at the DMV signed up as Democrats or Republicans, according to registration data collected by Mitchell. Three months later, after the change went into effect, that figure jumped to 74%. The shift has mostly held. During the first ten months of 2023, about 70% of voters registered as either Democrats or Republicans. A DMV spokesman said that the agency “streamlined the political party selection process” in 2019 based on feedback from the Secretary of State.

Hatch Act

Trump's former chief of staff Mark Meadows argued that his case should go to federal court because he was acting in an official capacity.  They were not.  Claire O. Finkelstein at Slare:

[The] activities Meadows was engaging in were highly political in nature, and such activities are strictly forbidden under 5 U.S.C. § 7323(a)(1), otherwise known as the “Hatch Act.” This statute forbids executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” It is designed to prohibit executive branch employees from using their official positions to engage in partisan political activities.

In August of 2020, Richard Painter and I filed a complaint against Secretary of State Mike Pompeo, for example, for the speech Pompeo gave at the Republican National Convention while on a diplomatic mission to Israel. This was a “personal capacity” speech delivered during an official business trip as secretary of state, while Pompeo was representing the United States in his official capacity—a clear Hatch Act violation. While the president and vice president are not subject to the Hatch Act, they are subject to a parallel criminal Hatch Act statute that makes it a crime to coerce political activity on the part of any federal executive branch official. Believing as we did that Trump was indeed attempting to pressure members of the executive branch into engaging in Hatch Act violations themselves, Richard Painter and I filed a criminal Hatch Act complaint under 18 U.S.C. §610 against Trump during the 2020 campaign, alleging that he was coercing political activity on the part of employees in the executive branch by attempting to “intimidate or coerce” them into supporting his aims.

In the Georgia indictment, the Hatch Act plays a critical role: The activities Meadows performed in the run-up to the Jan. 6 attack on the Capitol building constituted a contribution to a partisan political effort to ensure that Trump was declared the winner of the 2020 election, despite having lost that election completely. Such naked political activities cannot be official duties for anyone who is a federal executive branch office holder. The entire Georgia campaign reads like one big Hatch Act violation—a civil Hatch Act violation for federal officeholders like Meadows and a criminal Hatch Act violation for Trump for pressuring his subordinates into civil Hatch Act violations.

It is striking how similar Trump’s behavior in Georgia in 2020 is to the criminal Hatch Act complaint we filed against Trump. The “perfect” phone call with Georgia Secretary of State Brad Raffensperger in which Trump attempted to coerce Raffensperger into coming up with 11,780 votes in order to reverse the results of the election in Georgia was an attempt to intimidate state officers into supporting Trump’s personal political aims—conduct that is precisely what the criminal Hatch Act provision was meant to address in the case of federal officers. In this case, the officers just happened to be state officials for the most part, with the possible exception of Meadows and other federal officials Trump tried to rope into his campaign.

A Caution About Instant Runoff Voting

Beyond the Spoiler Effect: Can Ranked Choice Voting Solve the Problem of Political Polarization?
University of Illinois Law Review, Forthcoming

Nathan Atkinson University of Wisconsin - Madison
Edward B. Foley Ohio State University (OSU) - Michael E. Moritz College of Law
Scott Ganz Georgetown University - McDonough School of Business

Abstract

Ranked-Choice Voting (RCV) is growing in popularity among election reformers, who have coalesced in particular around Instant Runoff Voting (IRV), a specific form of RCV that has recently been adopted in Maine and Alaska and will likely be proposed in many more states as ballot initiatives in the coming years. While reformers hope that IRV can ameliorate extremism and political polarization, this paper presents empirical evidence that undercuts these hopes. For instance, Alaska’s very first election following the state’s adoption of IRV signaled that the method may fail to elect the candidate most preferred by a majority of the state’s voters. Extrapolating from Alaska’s experience, and using a nationally representative sample of over 50,000 voters, we analyze the prospective effects of adopting IRV in every state. This analysis shows that IRV tends to produce winning candidates who are more divergent ideologically from their state’s median voter than do other forms of RCV. And the effect is most pronounced in the most polarized states—precisely the electorates for which IRV is being promoted as an antidote to existing divisiveness. We conclude by highlighting other formulations of RCV that result in more representative outcomes and are thereby better positioned to combat extremism and political polarization.

They explain:

Instant runoff voting does result in the majority rule its advocates tout, but only in the sense that the winning candidate is definitionally preferred to the runner-up candidate by a majority of the electorate. When no more than two candidates are electorally viable, as is frequently the case under two-partyrule, IRV ensures that the candidate with the widest support wins the election. However, a third viable candidate undermines the guarantee that the winner under IRV—or even the runner-up—will be the candidate with the “broadest support from all voters.” In fact, one can easily construct examples where a candidate supported by “a true majority of the voters” is not included in the final two-candidate matchup.

Consider an election with five voters and three candidates: a left-leaning candidate, Linda; a right-leaning candidate, Rachel; and a centrist candidate, Carl. Two voters are liberals and prefer Linda to Carl to Rachel. Two voters are conservatives and prefer Rachel to Carl to Linda. And the lone centrist voter prefers Carl to Linda to Rachel. In an election conducted under IRV, Carl receives only one first-choice vote, and so is eliminated after the first round. The one vote for Carl then transfers to Linda, who wins the runoff election against Rachel by a count of 3-2. Linda does in fact have the “broadest support from all voters” in the contest between Linda and Rachel. However, if the election had been between Carl and Linda, then Carl would have had the “broadest support from all voters,” defeating Linda by a vote of 3-2. Likewise, Carl would have beaten Rachel by the same vote. Yet, because of IRV’s focus on first-place choices in determining the order in which candidates are eliminated from contention, Carl is unable to survive the first ballot. Recall that under Condorcet’s method, Carl would be the most deserving candidate: a majority of voters prefer him to either alternative. But centrist Carl does not win the IRV election when both the liberal and the conservative alternatives have larger bases.

 

Pence on Overturning Elections

 

Video on Trust in Elections

 From Pew:

Ranked-Choice Voting

 Gary Schmitt at AEI:

Another idea for reforming the candidate selection system is ranked-choice voting, in which primary voters rank their candidate choices from most to least favorite. If no candidate wins a majority of the votes in the first round, the candidate with the fewest votes is eliminated; his or her voters’ second choices are distributed among the remaining candidates. This process continues until one candidate gets a majority.

This means that no candidate can be the winner just by getting more votes than any of the other guys. It also means that to win a majority, a candidate will have to appeal to a broader range of eligible voters instead of single-mindedly pursuing a narrow, polarizing block of the voting public. In fact, there is some evidence that in Virginia’s Republican gubernatorial primary this year, ranked-choice voting produced a candidate, Glenn Youngkin, who—while decidedly conservative—showed himself to have enough broad appeal to succeed in a purple, blue-trending state.

No single system is guaranteed to produce candidates who are both popular and fit for office. No selection system can, by itself, fix the current state of our political parties. But an advantage of ranked-choice voting is that it provides a potential corrective to problematic populist campaigning by installing a selection system that can be said to be as democratic as, or even more democratic than, the system currently in place.

Information Disorder

From the Aspen Institute:

The Aspen Institute’s Commission on Information Disorder is making 15 recommendations to help government, private industry, and civil society advance solutions to and reduce the greatest harms in America’s urgent mis- and disinformation crisis. Among many other critical challenges, the ambitious report covers legislative and executive action on transparency, disclosure, and platform immunity; the collapse of local journalism; community-led methods for resisting imbalances of power further propagated by bad actors; and accountability mechanisms for “superspreaders” of lies.

Published in the Commission’s Final Report, launched today, the recommendations together aim to increase transparency and understanding, build trust, and reduce harms. A summary of each is provided at the end of this press release, along with a list of the commissioners.

…

Read the Final Report detailing the recommendations on the Aspen Institute’s website. Those seeking to learn more about the Commission on Information Disorder are invited to visit AspenInfoCommission.org.

RECOMMENDATIONS

What follows is a high-level overview of the final recommendations of the Aspen Institute’s Commission on Information Disorder.

Recommendations to increase transparency

Public interest research

1. Implement protections for researchers and journalists who violate platform terms of service by responsibly conducting research on public data of civic interest.
2. Require platforms to disclose certain categories of private data to qualified academic researchers, so long as that research respects user privacy, does not endanger platform integrity, and remains in the public interest.

High reach content disclosure
Create a legal requirement for all social media platforms to regularly publish the content, source accounts, reach and impression data for posts that they organically deliver to large audiences.

Content moderation platform disclosure
Require social media platforms to disclose information about their content moderation policies and practices, and produce a time-limited archive of moderated content in a standardized format, available to authorized researchers.

Ad transparency
Require social media companies to regularly disclose, in a standardized format, key information about every digital ad and paid post that runs on their platforms.

Recommendations to build trust

Truth and transformation
Endorse efforts that focus on exposing how historical and current imbalances of power, access, and equity are manufactured and propagated further with mis- and disinformation — and on promoting community-led solutions to forging social bonds.

Healthy digital discourse
Develop and scale communication tools, networks, and platforms that are designed to bridge divides, build empathy, and strengthen trust among communities.

Workforce diversity
Increase investment and transparency to further diversity at social media platform companies and news media as a means to mitigate misinformation arising from uninformed and disconnected centers of power.

Local media investment
Promote substantial, long-term investment in local journalism that informs and empowers citizens, especially in underserved and marginalized communities.

Accountability norms
Promote new norms that create personal and professional consequences within communities and networks for individuals who willfully violate the public trust and use their privilege to harm the public.

Election information security
Improve U.S. election security and restore voter confidence with improved education, transparency, and resiliency.

Recommendations to reduce harms

Comprehensive federal approach
Establish a comprehensive strategic approach to countering disinformation and the spread of misinformation, including a centralized national response strategy, clearly-defined roles and responsibilities across the Executive Branch, and identified gaps in authorities and capabilities.

Public Restoration Fund
Create an independent organization, with a mandate to develop systemic misinformation countermeasures through education, research, and investment in local institutions.

Civic empowerment
Invest and innovate in online education and platform product features to increase users’ awareness of and resilience to online misinformation.

Superspreader accountability
Hold superspreaders of mis- and disinformation to account with clear, transparent, and consistently applied policies that enable quicker, more decisive actions and penalties, commensurate with their impacts — regardless of location, or political views, or role in society.

Amendments to Section 230 of the Communications Decency Act of 1996

1. Withdraw platform immunity for content that is promoted through paid advertising and post promotion.
2. Remove immunity as it relates to the implementation of product features, recommendation engines, and design.

 

Counting the Vote

John C. Fortier and Charles Stewart III have an AEI report titled Lessons learned from the 2020 election.  

From the overview:

The 2020 election witnessed a continuation oftrends established in recent elections, whereby vote counting has slowed and the votes counted are disproportionately Democratic the further away from Election Day the counting proceeds. These trends are due to certain types of ballots taking longer to count completely and large urban areas taking longer to complete the vote count. » Despite these national generalities, many states deviated from the national trend. » In 2020, most states counted nearly 100% of their final totals of ballots within 48 hours of polls closing on Election Day. Six states — Iowa, Florida, North Carolina, Oklahoma, Tennessee, and Louisiana — counted nearly one hundred percent of their total ballots within four hours of polls closing. » Research that has looked at the speed with which states reported their votes has concluded that (1) states with more mail ballots are slower to report vote totals, (2) states that limit the pre-processing of mail ballots are slower, and (3) states that allow mail ballots to arrive after Election Day are slower. » The magnitude of the “blue shift,” the pattern whereby later-counted ballots are disproportionately Democratic, depends on when one starts the 4 comparison. Indeed, if one compares final election results with vote reports in the first three hours following polls closing, there was a national “red shift” in 2020. » Many states have certification deadlines that come very close to the “safe harbor” benchmark for certifying elections, thus perhaps giving insufficient time for careful consideration of recounts and challenges.

Election Adaptations During COVID

Kevin Kosar at AEI:

COVID-19 forced states to make myriad adjustments to their elections administration in order to ensure sufficient access to the ballot. Changes included expanding voter access to the use of absentee ballots, extending voter registration deadlines, and increasing the number of polling places, among others. How well did states do in adapting their elections administration?

To answer this question, I turned to Professor Zachary Courser and Professor Eric Helland. They co-direct Claremont McKenna College’s Policy Lab, an interdisciplinary policy research program that teaches students policy writing and research skills that prepare students for work in legislatures, think tanks, and non-governmental organizations. Zach, Eric, and their Policy Lab students spent the past year examining states’ emergency election statutes and election administration adaptations during the pandemic, and they have some interesting findings.

...

You and your students created a scorecard to measure states’ adaptations to make voting accessible during the pandemic. How did you create the scorecard, and which states scored highest?

Before the election, we evaluated state statutes dealing with elections emergencies to understand the legal framework for adaptation during an emergency, and then tracked all the adaptations that states took to ensure access to voting for the general election. We then analyzed which measures were most likely to have an effect on increasing access during the pandemic and assigned each a score accordingly. Adaptations clustered in four main categories: vote-by-mail, drop-off boxes, deadline adjustments, and polling place adjustments. We assigned measures for mail-in voting the highest point value, as we think they did the most to protect health and promote perceptions of safety during the pandemic. As a result, states that already had all-mail elections, or adapted by increasing access to absentee balloting, tended to score higher.

The average grade was a C, and as you can see from the map below, the highest scoring states clustered in the west. Hawaii, Oregon, Washington, and Utah all score A’s, with New Jersey scoring the highest in the nation. Southern states were laggards on access generally, scoring the lowest as a region — with most states rating a D or F. Missouri scored the lowest in the nation.

The 2020 Election

Nathaniel PersilyCharles Stewart III have an article at The Journal of Democracy titled " The Miracle and Tragedy of the 2020 U.S. Election."

The abstract:

The 2020 election was both a miracle and a tragedy. In the midst of a pandemic posing unprecedented challenges, local and state administrators pulled off a safe, secure, and professional election. This article discusses metrics of success in the adaptations that took place—record-high turnout, widespread voter satisfaction, a doubling of mail voting without a concomitant increase in problems often associated with absentee ballots, and the recruitment of hundreds of thousands of new poll workers. However, a competing narrative of a “stolen election” led to a historically deep chasm between partisans in their trust of the election process and outcome.

Foreign Governments Did Not Tamper with Election Results

Joint Statement from the Departments of Justice and Homeland Security Assessing the Impact of Foreign Interference During the 2020 U.S. Elections

Note: The joint report can be viewed here.

The Department of Justice (DOJ) and the Department of Homeland Security (DHS), including the FBI and the Cybersecurity and Infrastructure Security Agency (CISA), released today key findings and recommendations from a joint report to the President issued last month on the impact of foreign governments and their agents on the security and integrity of the 2020 U.S. federal elections.

The Departments investigated multiple public claims that one or more foreign governments owned, directed or controlled election infrastructure used in the 2020 federal elections; implemented a scheme to manipulate election infrastructure; or tallied, changed or otherwise manipulated vote counts. The Departments found that those claims were not credible.

These conclusions are part of a classified report to the President prepared by DOJ and DHS pursuant to section 1(b) of Executive Order 13848, Imposing Certain Sanctions in the Event of Foreign Influence in a United States Election (the EO), issued on Sept. 12, 2018. Although the 1(b) report notes that Russian, Chinese, and Iranian government-affiliated actors materially impacted the security of certain networks during the 2020 federal elections, the Departments found no evidence that any foreign government-affiliated actor manipulated election results or otherwise compromised the integrity of the 2020 federal elections.

The 1(b) report relied on a classified assessment — prepared by the Office of the Director of National Intelligence (ODNI), pursuant to section 1(a) of the EO, about any information indicating that a foreign government acted with the intent or purpose of interfering in the 2020 U.S. federal elections. Whereas the 1(a) report discusses efforts to influence public perceptions and opinion, the scope of the 1(b) report only includes efforts to compromise the security or integrity of election infrastructure or infrastructure pertaining to political organizations, candidates or campaigns used in the 2020 U.S. federal elections. The 1(b) report does not discuss efforts to sway voters or influence opinion.

During the 2020 election cycle, federal, state, local, tribal, territorial, non-governmental and private sector partners nationwide worked together in unprecedented ways to combat foreign interference efforts and support election officials, political organizations, campaigns and candidates in safeguarding their infrastructure. The Departments remain committed to continuously strengthening the nation’s cybersecurity, critical infrastructure, supply chain risk management, public-private partnerships and public messaging to enhance the resiliency of our democratic institutions.

Retired Military Officers on Mail Ballots

Retired Admiral Bill Owens and retired General James Cartwright are both former vice chairmen of the Joint Chiefs of Staff and members of the bipartisan National Council on Election Integrity.  They write at USA Today:

As commissioned officers, we both swore an oath to defend and uphold the Constitution. And today, given the circumstances surrounding this election, our continued sense of duty compels us to speak. We urge every American — regardless of their political affiliation — to trust the final results of this election: Democrat Joe Biden will be the next commander-in-chief.

... 

We wish to underscore our steadfast conviction that the vast majority of election officials are honest, hardworking public servants with the best interests of our nation at heart. And though no human endeavor is flawless, there are safeguards in place to protect the integrity of the process.

Every state maintains concrete steps to authenticate absentee ballots, and each has a deadline by which it will verify its results. The process this year has been carried out with the integrity we expect as Americans. To claim otherwise, without evidence, compromises the sanctity of our democracy.

Much has been made about the significant number of absentee ballots cast by mail because of COVID-19. The reality is that members of the armed forces have successfully voted by mail since the Civil War. During our time in the military, we cast ballots from nearly every corner of the world. Indeed, members of the U.S. military vote from every clime and place, including aboard the International Space Station and onboard submarines deployed worldwide. On every occasion, we and our fellow service members have complete confidence that our ballots will be received and counted.

To put it simply: If voting by mail is acceptable for the members of the military, then it should be acceptable for the rest of our population.

Most Secure Election in History

  From the Cybersecurity and Infrastructure Security Agency (CISA):

The members of Election Infrastructure Government Coordinating Council (GCC) Executive Committee... released the following statement:

“The November 3rd election was the most secure in American history. Right now, across the country, election officials are reviewing and double checking the entire election process prior to finalizing the result. 

“When states have close elections, many will recount ballots. All of the states with close results in the 2020 presidential race have paper records of each vote, allowing the ability to go back and count each ballot if necessary. This is an added benefit for security and resilience. This process allows for the identification and correction of any mistakes or errors. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.

“Other security measures like pre-election testing, state certification of voting equipment, and the U.S. Election Assistance Commission’s (EAC) certification of voting equipment help to build additional confidence in the voting systems used in 2020.

“While we know there are many unfounded claims and opportunities for misinformation about the process of our elections, we can assure you we have the utmost confidence in the security and integrity of our elections, and you should too. When you have questions, turn to elections officials as trusted voices as they administer elections.”

Voting: Comparative Perspectives

 From Pew:

Though the exact policy varies from one place to another, 122 of the 226 countries and territories in the ACE Electoral Knowledge Network have some form of compulsory voter registration. In Argentina, Chile, Hungary, Israel, the Netherlands and elsewhere, such registration is automatic, based on government records such as census counts. In other cases, qualified residents are required to register themselves. Failing to register is punishable by a fine in some places, including New Zealand, Tonga and the United Kingdom.

Another 90 countries and territories have no laws requiring all qualified residents to register to vote, though registration may be required in order to vote. In India – the world’s largest democracy – and Mongolia, voter rolls are compiled automatically through census data collection, though registration is not compulsory. In Austria, voter registration and voting itself were compulsory in at least one province until 2004; today, there is no requirement to register or to vote in Austrian elections. There is no compulsory voter registration in the U.S., though registration is necessary in order to vote in nearly all states and U.S. territories (North Dakota does not have voter registration)