Desperately Needed: Election Protection-- Otherwise Expect "Street-Level Violence And Political Impasse" In November

Never Waste A Serious Crisis by Nancy Ohanian

Over the weekend, the Washington Post ran a story about the extreme dysfunction NYC has experienced in trying to run an election. There is still no determination who will represent NY-12, a district that includes Yorkville, the Upper East Side, Midtown (including Trump Tower), Gramercy Park, Turtle Bay, Tudor City, Union Square, Roosevelt Island, Kips Bay, the East Village and the Lower East Side in Manhattan; Astoria, Long Island City and Sunnyside in Queens; and Greenpoint and northern Williamsburg in Brooklyn. Wall Street hack and establishment liberal Carolyn Maloney represents the district now but on election night (June 23) the results were too close to call. With tens of thousands of mail-in ballots, they still are.

• Carolyn Maloney- 16,473 (41.6%)
• Suraj Patel- 15,825 (39.9%)
• Laura Ashcraft- 5,268 (13.3%)
• Peter Harrison- 1,933 (4.9%)

"Just 648 in-person votes are separating them," wrote Jada Yuan, "with 65,000 mail-in ballots still being counted. And an entire district of 718,000 people across three boroughs have no idea who their next representative will be-- a full month after Election Day... At the center of this mess is a massive influx of mail-in ballots-- 403,000 returned ballots in the city this cycle vs. 23,000 that were returned and determined valid during the 2016 primary-- and a system wholly unprepared to process them. It’s not just delayed results that are at issue: In the 12th district and in the primaries across the country, tens of thousands of mail-in ballots were invalidated for technicalities like a missing signature or a missing postmark on the envelope."

All across the state, other close primaries were also plagued by the same problems. "None of this," continued Yuan, "bodes well for November’s federal election in which President Trump has refused to say whether he will accept the results. Turnout is expected to skyrocket because of the presidential race. Another covid-19 spike in the fall could lead to more mail-in ballots from people who fear crowded polling places. Add in slowed mail delivery because of the pandemic, while Trump constantly threatens to dismantle the U.S. Postal Service. Meanwhile, Trump and his Republican allies have repeatedly attacked the integrity of mail-in voting, making unfounded claims that the method is susceptible to widespread fraud."

Enter New York’s 12th as an extreme, but not isolated, case study. On Tuesday, the race even caught the eye of White House press secretary Kayleigh McEnany, who cited “the absolute catastrophe for New York City” in her news briefing while answering a question on election security.

“It’s a dark omen for November,” said a Wall Street Journal op-ed about the race, warning against voter fraud.

“Let’s fix this dumpster fire before it burns down the country in November,” the New York Daily News, a liberal tabloid, wrote in its op-ed on the race, warning about voter disenfranchisement through ballots that are invalidated because of missing postmarks.

...But the invalidation rate is concerning to many who are watching the race. According to data from the Board of Elections first published by The Intercept, up to 1 in 5 mail-in ballots were declared invalid before even being opened, based on mistakes with their exterior envelopes. The majority of mistakes are due to missing or late postmarks, and missing signatures. Preliminary numbers from the Board of Elections show an invalidation rate of 19 percent in both Manhattan and Queens and 28 percent in Brooklyn, just in this district. That rate, if applied to all of Brooklyn, would equate to 34,000 ballots thrown out, in a borough with the city’s largest population of black residents.

...Election Day was on June 23. The Board of Elections, by law, waited a week for all the mail-in ballots to arrive, and then waited until July 8 to start the count because of the sheer volume of ballots to sort through and the July Fourth weekend. A week after that, still no absentee ballots had been counted in the 12th District.

...All the action in their contest is focused on the count, and it is something out of a dystopian thriller about office tedium. At the Manhattan canvassing spot, numbered folding tables are scattered throughout a cavernous space. Two BOE employees sit on one side of a plexiglass sneeze guard.

On the other side are the watchers. Each campaign gets one watcher at each table. The BOE employees open the envelopes and show the ballots through the sneeze guard so the watchers can contest a ballot’s validity and compile chicken-scratch tallies. The pace is equivalent to watching a sloth eat bark.

Back in his office, Patel is worrying over “the postmark issue.” It was all he could think about: The 13,000 invalid ballots across three boroughs in his race. Based on photocopies of envelopes his campaign received from the Board of Elections, he estimated half of those were not counted because of a missing postmark.

These are ballots that fell into a kind of black hole of election law. Ballots that arrived to the BOE before or on June 23, Election Day, with or without a postmark are valid. Ballots that arrived by the cutoff of June 30 with a postmark of June 23 or earlier are valid. Ballots that arrived before June 30 but have no postmark or a postmark of the 24th, which many had, likely due to what the BOE called “USPS error,” Patel said-- those are invalid, automatically.

“It’s a question of timeliness. We are constrained,” said Valerie Vazquez-Diaz, the BOE’s spokeswoman.

That third category of ballots are the one Patel is fighting to have counted. The lawsuit he filed calls on Gov. Cuomo to fix the issue with an executive order.

In his Tuesday news conference, Cuomo punted the issue to the state legislature.

What Patel argues is that the law isn’t taking into account how much the pandemic changed the election. In the midst of the state’s shutdown in April, Cuomo signed an executive order mandating that the BOE send an absentee ballot application to every New Yorker, who in the past could only obtain an absentee ballot for very narrow reasons, such as illness or disability.

The BOE, with limited staff allowed in its offices, sprung to action, setting up an online portal and a phone line for absentee ballot requests and preparing a mailing for the city’s 3million registered primary voters. That didn’t go out until mid-May.

Every ballot request needed to be approved by a bipartisan set of staffers, then entered into the voter rolls. Then a court dispute about the presidential primary delayed the finalization of the ballot, which the BOE didn’t begin sending out until three weeks before the election.

That’s where the U.S. Postal Service comes in. Mail-in ballots are in the hands of a federal agency on the brink of bankruptcy that had to sideline 17,000 workers on quarantine because of exposure to the virus. Louis DeJoy, a Trump donor recently appointed as postmaster general, has announced cost-cutting changes that will likely further slow mail delivery.

At every turn, the governor’s executive orders and the BOE’s deadlines were out of touch with the Postal Service’s abilities. The final date for voters to send in absentee applications was June 16, an impossible seven-day turnaround for the application to get to the BOE and a ballot to get to the voter in time to cast it.

But in New York, there was another issue. The governor’s executive order called for the ballots to have business-class postage-paid return envelopes. In a normal year, voters provide their own stamp, which is considered first-class mail and always postmarked. The USPS said it is also their policy to postmark all ballots. It is not standard, however, as voter advocacy groups have said, to postmark the type of business-class mail used in New York’s primary election. If you drop it off in a mailbox it is simply sent to its destination. It seems as though the postage class created confusion among some USPS employees.

The only way for a voter to guarantee a postmark would have been to stand in line at a post office and watch a teller do it, rather than drop it in a box, which defeats the public-health benefit of mail-in ballots.

Upon review of what happened in New York, USPS spokeswoman Martha Johnson said, “We are aware that some ballots may not have been postmarked and have taken actions to resolve the issue going forward.”

On Wednesday night, Cuomo and New York Attorney General Letitia James responded to the lawsuit Patel joined by saying that allowing un-postmarked ballots was “not in the public interest because it would upend the rules... after the election has already taken place.”

Patel quickly looked into a new legal strategy and has secured an expedited hearing that may happen as early as Thursday.

“This is not the fault of vote by mail,” he said. “I’ve always been an advocate of vote by mail. It increased participation to astronomical rates for a congressional primary. But man is New York unprepared to have the procedures in place to count these ballots in a timely fashion.”

Of course, he still wants to know the outcome.

“It might be that we open up those ballots and they all go to Maloney. It’s not my job to decide who gets to vote,” he said. “At least we’d know what the actual intention of New York-12 was.”

OK, want to imagine the worst-- that it isn't just a couple of Wall Street-friendly Democrats, one old and one young,  fighting over postmarks-- but Trump and Biden in November? Jess Bidgood, reporting for the Boston Globe wrote that "On the second Friday in June, a group of political operatives, former government and military officials, and academics quietly convened online for what became a disturbing exercise in the fragility of American democracy. The group, which included Democrats and Republicans, gathered to game out possible results of the November election, grappling with questions that seem less far-fetched by the day: What if President Trump refuses to concede a loss, as he publicly hinted recently he might do? How far could he go to preserve his power? And what if Democrats refuse to give in?"

“All of our scenarios ended in both street-level violence and political impasse,” said Rosa Brooks, a Georgetown law professor and former Defense Department official who co-organized the group known as the Transition Integrity Project. She described what they found in bleak terms: “The law is essentially... it’s almost helpless against a president who’s willing to ignore it.”

Using a role-playing game that is a fixture of military and national security planning, the group envisioned a dark 11 weeks between Election Day and Inauguration Day, one in which Trump and his Republican allies used every apparatus of government-- the Postal Service, state lawmakers, the Justice Department, federal agents, and the military-- to hold onto power, and Democrats took to the courts and the streets to try to stop it.

If it sounds paranoid or outlandish-- a war room of seasoned politicos and constitutional experts playing a Washington version of Dungeons and Dragons in which the future of the republic hangs in the balance-- they get it. But, as they finalize a report on what they learned and begin briefing elected officials and others, they insist their warning is serious: A close election this fall is likely to be contested, and there are few guardrails to stop a constitutional crisis, particularly if Trump flexes the considerable tools at his disposal to give himself an advantage.

“He doesn’t have to win the election,” said Nils Gilman, a historian who leads research at a think tank called the Berggruen Institute and was an organizer of the exercise. “He just has to create a plausible narrative that he didn’t lose.”

The very existence of a group like this one, which was formed late last year, underscores the extent of the fear in Washington’s political circles-- and beyond-- that Trump will take the same hammer he has used to fracture the norms of executive governance over the past three years and upend the nation’s delicate tradition of orderly political transitions of power by refusing to concede if he loses.

“We have norms in our transition, rather than laws,” said Rachel Kleinfeld, a senior fellow in the Democracy, Conflict and Governance Program at the Carnegie Foundation, who was not part of the game. “This entire election season is something a democracy expert would worry about.”

It is a fear that has been stoked by the president himself, who has repeatedly warned, without offering evidence, of widespread fraud involving mail-in ballots-- which voters are likely to use at unprecedented levels because the pandemic has made in-person voting a potential health risk-- to cast doubt on the results of November’s election.

“I think mail-in voting is going to rig the election, I really do,” he told Fox News’ Chris Wallace last Sunday. When asked if he would accept the election results, he said: “I’ll have to see.”

Former vice president Joe Biden, the presumptive Democratic nominee, has taken to issuing foreboding warnings of his own. “This president is going to try to indirectly steal the election by arguing that mail-in ballots don’t work-- they’re not real, they’re not fair,” he said at a fund-raiser on Thursday night. He has also mused publicly about Trump having to be escorted, forcibly if need be, from the White House.

That happened in one of the four scenarios the Transition Integrity Project gamed out, according to summaries of the exercises provided to the Boston Globe. But constitutional experts-- and the game play-- was less focused on the possibility of a cinematic, militarized intervention on Inauguration Day, which is a possibility many still consider remote, than the room the Constitution appears to leave for a disastrous and difficult transition if the incumbent does not accept a loss.

“How well is our constitutional legal system designed to deal with an incumbent president who insists that he won an election but for the presence of fraud?” said Lawrence Douglas, a professor at Amherst College who has written a book on what would happen if Trump took such a stand. “And I think the rather unfortunate answer is our system is not well designed at all to deal with that problem,” said Douglas, who was not involved in the game.

Brooks got the seed of the idea for the Transition Integrity Project after a dinner where a federal judge and a corporate lawyer each told her they were convinced the military or the Secret Service would have to escort Trump out of office if he lost the election and would not concede. Brooks wasn’t so sure. She and Gilman decided to turn the Washington parlor game into an actual exercise; they held an early meeting in Washington, with about 25 people, in December.

“When we started talking about this we got a lot of reactions-- oh, you guys are so paranoid, don’t be ridiculous, this isn’t going to happen,” Brooks said.

Two things have happened since then: Trump has displayed increased willingness to challenge mail-in ballots, and his administration has deployed federal forces to quell protests in front of the White House and in Portland, Oregon, and has threatened to do so in other cities.

“That has really shaken people,” Brooks said. “What was really a fringe idea has now become an anxiety that’s pretty widely shared.”

Brooks, Gilman, and others recruited a slate of players including a former swing state governor, a former White House chief of staff, and a former head of the Department of Homeland Security. They invited both Democrats and Republicans who they knew had concerns about Trump’s comments on the election; nearly 80 people in all were involved. The Republicans were described by participants as “never Trump” or “not Trump Republicans.”

They played using the so-called Chatham House Rules-- in which participants can discuss what was said, but not who was there; some participants were willing to be named. They included Republicans Trey Grayson, the former Kentucky secretary of state, and conservative commentator Bill Kristol, as well as Democrats Leah Daughtry, who was CEO of the 2008 and 2016 Democratic National Convention Committees, former White House ethics czar Norm Eisen, and progressive Democratic strategist Adam Jentleson.

The game was elaborate. The participants took on the roles of the Trump campaign, the Biden campaign, relevant government officials, and the media-- generally, Democrats played Democrats and Republicans played Republicans-- and used a 10-sided die to determine whether a team succeeded in its attempted moves. The games are not meant to be predictive; rather, they are supposed to give people a sense of possible consequences in complex scenarios.

Each scenario involved a different election outcome: An unclear result on Election Day that looked increasingly like a Biden win as more ballots were counted; a clear Biden win in the popular vote and the Electoral College; an Electoral College win for Trump with Biden winning the popular vote by 5 percentage points; and a narrow Electoral College and popular vote victory for Biden.

In the scenarios, the team playing the Trump campaign often questioned the legitimacy of mail-in ballots, which often boosted Biden as they came in-- shutting down post offices, pursuing litigation, and using right-wing media to amplify narratives about a stolen election.

To some participants, the game was a stark reminder of the power of incumbency.

“The more demonstrations there were, the more demands for recounts, the more legal challenges there were, the more funerals for democracy were held, the more Trump came across as the candidate of stability,” said Edward Luce, the US editor of the Financial Times, who played the role of a mainstream media reporter during one of the simulations. “Possession is nine-tenths of the law.”

In multiple scenarios, officials on both sides homed in on narrowly decided swing states with divided governments, such Wisconsin, Michigan, and North Carolina, hoping to persuade officials there to essentially send two different results to Congress. If a state’s election is disputed, a legislature controlled by one party and governor of another each could send competing slates of electors backing their party’s candidate.

Both sides turned out massive street protests that Trump sought to control-- in one scenario he invoked the Insurrection Act, which allows the president to use military forces to quell unrest. The scenario that began with a narrow Biden win ended with Trump refusing to leave the White House, burning government documents, and having to be escorted out by the Secret Service. (The team playing Biden in that scenario, meanwhile, sought to patch things up with Republicans by appointing moderate Republican governors, including Charlie Baker of Massachusetts, to Cabinet positions.)

The scenario that produced the most contentious dynamics, however, was the one in which Trump won the Electoral College-- and thus, the election-- but Biden won the popular vote by 5 percentage points. Biden’s team retracted his Election Night concession, fueled by Democrats angry at losing yet another election despite capturing the popular vote, as happened in 2000 and 2016. In the mock election, Trump sought to divide Democrats-- at one point giving an interview to The Intercept, a left-leaning news outlet, saying Senator Bernie Sanders would have won if Democrats had nominated him. Meanwhile, Biden’s team sought to encourage large Western states to secede unless pro-Democracy reforms were made.

That scenario seemed highly far-fetched, but it envisioned a situation in which both sides may have incentives to contest the election.

“There is a narrative among activists in both parties that the loss must be illegitimate,” he said.

According to the Constitution, the presidency ends at noon on Jan. 20, at which point the newly inaugurated president becomes the commander in chief.

The games, ultimately, were designed to explore how difficult it could be to get there.

“The Constitution really has been a workable document in many respects because we have had people who more or less adhered to a code of conduct,” said retired Army Colonel Larry Wilkerson, a Republican and former chief of staff to Colin Powell who participated in games as an observer. “That seems to no longer to be the case. That changes everything.”