The Rappaport Center for Law and Public Policy hosted a panel on Oct. 8 that focused on the potential challenges to peaceful elections and how organizations mitigate these challenges.
Genevieve Nadeau, counsel and impact manager of Protect Democracy and the semester’s second Rappaport Senior Fellow, moderated the BC Law event, with panelists Leigh Chapman, former secretary of state for Pennsylvania; Benjamin Ginsberg, Volker Distinguished Visiting Fellow at Stanford’s Hoover Institution; and Professor Justin Levitt, Gerald T. McLaughlin Fellow at Loyola Law School.
The questions in this arena, Levitt said, are not: “Is the election going to go perfectly or can we prevent all of the mistakes or can we prevent all of the glitches, but [rather] how do we respond when, inevitably, the mistakes and glitches come? And that’s where the system is really wonderfully resilient.”
Chapman works at Open Society Foundation, which plans for both the 2024 election and what comes after—focusing on election infrastructure, responding to election threats such as generative AI, and protecting the post-election period vote count.
The foundation also endeavors to ensure that organizations have access to cyber and physical security assistance, as well as crisis communications, Chapman said.
“Unfortunately, a lot of our grantees, who are activists in the movement, now travel with physical security, and that’s something that we’ve seen a ramp up post January 6 [2020] and this year,” Chapman said. “So, we’ve invested to get resources to make sure that people who are doing the work to make sure our democracy is protected have those resources to make sure that they’re protected as well.”
“The challenge for this election cycle is that we are a really divided country. There is half the country, certainly a third of the country, that doesn’t believe in the reliability of election results, and that is a crisis for our democracy.”
Benjamin Ginsberg, co-chair of the Legal Defense Network
Ginsberg said that his time as a Republican election lawyer gave him a first-hand understanding of the value of the vote and the peaceful transfer of power. He was National Counsel for former President George W. Bush during the 2000 recount between Bush and former Vice-President Al Gore, where the election came down to 537 contested votes, and Gore eventually conceded.
“When you compare that to 2020, which honestly was not a close election,” Ginsberg said, and where the principle of the rule of law is that you have every right to bring court cases and recounts and litigation—but part of the rule of law is accepting the results— “it is very different from where we are today.”
For his part, Levitt, through his roles in partisan and nonpartisan nonprofits, at the Department of Justice, at the White House, and as a law professor, has focused on the voting process—making sure that if someone is eligible to vote, they have access to a meaningful ballot. “The 2020 election was the most scrutinized in history. It happened to deliver a reliable election in the middle of a pandemic, not by happenstance, but by an awful lot of work to make sure that the process reliably delivers results,” Levitt explained.
Election officials are taken for granted, said Ginsberg, a co-chair of the Legal Defense Network, which provides pro-bono legal services to election officials, and of the Pillars of the Community, which provides support to election officials and is based in five of the most contested election jurisdictions in the US.
“The challenge for this election cycle is that we are a really divided country,” Ginsberg said. “There is half the country, certainly a third of the country, that doesn’t believe in the reliability of election results, and that is a crisis for our democracy.”
Describing the voting timeline, Levitt called election day an “election-month-and-a-half.” There is mail-in voting, which can begin as early as 45 days before the final election deadline. Additionally, despite news networks calling the count, results are never official on election day, and states have until December 11 to finalize their count for the presidential election. Then, Electoral College electors cast their ballots, and the newly sworn-in Congress certifies the results in January.
However, Chapman pointed out, there can be snags along the way. She said she was most concerned about the post-election certification process. In 2022, election deniers used a provision in Pennsylvania to force recounts of the general election, and in the primary election five counties refused to sign undated ballots, so Chapman had to sue them to count the vote.
Chapman said that as mail-in ballots become more common, the process of counting them is speeding up, but the certification process is still subject to challenges that people are using 2022 to test,” Chapman said.
Ginsberg projected that in the most contested states—Arizona, Georgia, North Carolina, Pennsylvania, Michigan, Wisconsin, and Nevada—the election results will likely not be called the night of election day, and likely not until the weekend after.
The bipartisan federal Electoral College Reform Act has made the election process clear and has raised the threshold for bad actors to create an election disturbance.
Justin Levitt, Gerald T. McLaughlin Fellow at Loyola Law School
“If I was going to urge the pro-democracy community—which we all partake in—on one thing, it was that there was a really bad mistake made over the last four years in not doing more outreach to the people who are skeptical about elections,” Ginsberg said.
In terms of positive change, Levitt pointed out that the bipartisan federal Electoral College Reform Act has made the election process clear and has raised the threshold for bad actors to create an election disturbance.
“It was a rare moment where neither party could figure out how to get political advantage out of it,” Ginsberg said of the act. “Everyone knew that there would be a problem. And so, it was a shining, glorious moment of bipartisan compromise.”
In conclusion, panelists turned their attention to the students in the room. Chapman encouraged them to get involved with voter protection efforts—either on the partisan or nonpartisan side—and noted that election law internships are available. Levitt said that an understanding of what the law can, and cannot, do is valuable, and students can help demystify the election process for family and friends.
Photograph by Reba Saldanha