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Sep 20: Biden 347 EV (D+5.2% from toss-up), Senate 52 D, 48 R (D+3.7%), House control D+3.0%
Moneyball states: President NV AZ PA, Senate MT KS AK, Legislatures KS TX NC

How hard is it to steal a national election by mail?

August 13th, 2020, 8:09am by Guest Contributor


(This is a guest article by Michael Goldstein of Trenton, New Jersey. I helped too. -Sam)

Recent statements by the President – and actions by Postmaster General Louis DeJoy – raise concerns about the integrity of the upcoming Presidential election. In a close election, voter suppression (such as deliberate slowing of the mails) and election interference (such as hacking of voting machines) could distort the outcome. However, because of the way U.S. elections are administered – in a highly local manner – we find that the risk of a stolen election is lower than one might fear.

Voter Suppression has a long tradition in the United States, particularly in the formerly Jim Crow South. Techniques include discriminatory ID laws, under-provisioning or under-staffing minority precincts, and corrupting voter rolls to disqualify legal voters. 

Absentee voting in this year of coronavirus presents a new target. President Trump has impugned the integrity of absentee voting, and has claimed that the USPS is incapable of delivering ballots securely and on time. A large-scale failure of the USPS would be an immense act of voter suppression, especially since absentee voters tilt strongly toward Biden. And Trump’s new postmaster general, Louis DeJoy, has recently implemented changes that slow the delivery of the mail.

(Voter Fraud is another possibility, but this has historically been very rare in the U.S., and is essentially nonexistent today. Trump has raised the specter of large-scale foreign counterfeiting of ballots, but this is prevented by bar-coding of ballots.)

Could rhetoric about a corrupt election set the stage for Republicans to challenge a November defeat? With enough confusion, the Presidential election could be thrown to a “contingent election” in the House of Representatives, where a state-by-state vote would favor Republicans. 

However, this seems like an unlikely scenario. Indeed, this is an area where the much-maligned Electoral College helps, by acting like compartments on a ship: if one compartment is compromised, the others can still keep the whole thing afloat.

In the U.S. election system, elections are administered locally. The integrity of the election depends on the ability and willingness of dozens of state-level officials and thousands of county officials to pull off an orderly election. There is a long tradition of honest election administration in most states, regardless of party affiliation (see this recent article by Michael Sorzan and Christopher Guerrero). 

However, these are strange times, and we have to be ready for any scenario. So I’ve examined the processes and partisan control of voting in all 50 states, which manage their elections differently.

  • 24 states elect a Chief Election Officer (CELO) responsible for managing and certifying elections. Usually the CELO is the Secretary of State. 
  • In 6 states, governors appoint the CELO.
  • 5 state legislatures and 1 state senate appoint the CELO.
  • 7 states support bipartisan election boards with different mechanisms for appointing board members and the CELO. The governor has some degree of influence, but the boards are nominally bipartisan.

The specific risk is not election maladministration per se, but rather the possibility that CELOs will not take steps to preserve the integrity of the election in case of interference from an external force, such as deliberate slowing of the mails. Such integrity-preserving steps would include establishment of drop boxes, or extension of deadlines. For example, such steps are being taken here in New Jersey.

In my tabulation, the danger to Joe Biden is relatively small. The basic reason for this is that states Biden is most likely to carry have election processes that are managed, at least in part, by his own party. In these states, elections officials can take steps to ensure that votes will be counted in an orderly manner, even if the mails are slowed. Such steps can include dropboxes, early voting, and relaxed deadlines. If these states can certify Biden as the winner, then the worst scenarios come off the board.

For the purposes of this analysis we looked at the states which PEC rates as Strong Biden, Likely Biden, or Leaning Biden (as of August 7, 2020), and rated the risk of political interference in Biden winning those states as follows:

Low risk: Democratic or non-partisan CELO and Democratic governor, or Democratic CELO and legislative supermajorities and a Republican governor. 

Moderate risk: Split-party control by CELO and governor, or election boards with a history of partisanship. Examples: North Carolina, Wisconsin.

High Risk: Republican governor and CELO. Examples: Texas, Florida, Georgia, Ohio. 

Even after losing all high-risk states, Biden can still get to 289 electoral votes with Safe/Likely states that are Low/Moderate risk: 

 SafeLikelyLeanTotal
Total predicted 
Biden EV
2398088407
In states where the risk of suppression/fraud is    
 Low199301230
 Moderate39211575
 High12972102
     
Cumulative Total: Low + Moderate Risk238289305 
For a full breakdown of this analysis, click here.

The risk that state officials won’t remediate Postmaster General DeJoy and USPS malfeasance is high in states totaling 102 electoral votes indicated in red above. These high-risk states include Texas, Ohio, and Florida. But these states are not necessary to win the Electoral College. However, there are important downticket elections in all three states, and there is a risk of swinging the election there, especially in key Moneyball 2020 districts.

In addition to the high-risk states, the next place to be vigilant is moderate-risk states (indicated in orange above) with a history of recent vicious partisanship. Hotspots of potential trouble include Wisconsin and North Carolina. Those are important states to watch.

In short, even in the unlikely scenario that elections officials abandon their duty to administer elections, a stolen election seems unlikely.

Of course, at the moment the election does not appear to be all that close in electoral terms. After a string of mostly close elections since 2000, this year’s contest looks more like the historical norm, in which one party or the other usually dominates both the popular vote and the electoral vote. And if Biden is perceived as a near-certain winner, state officials will be even less motivated to skew the result.

None of this changes the importance of holding an orderly election. Don’t forget that one-third of the Senate and all of the House will be up for election, as well as thousands of local races and ballot questions. Volunteer to be a poll-watcher with your local election authority or political party. And don’t forget to use the PEC 50-state guide and Redistricting Moneyball guide to find critical races near you!

Michael Goldstein is a Trenton, NJ based entrepreneur and former McKinsey & Company management consultant.  This analysis started as part of Michael’s ongoing correspondence concerning the Pandemic and the Election with his classmates from HBS Section F 1983.  You can find him on Twitter @mgincnj and at his blog.

Tags: 2020 Election · Politics · President

24 Comments so far ↓

  • Vivek Soman

    Sam, thank you for the article. You covered very well the risk from politically motivated election administration. However, I see yet another important risk which goes as follows.

    After the election, Trump/Barr declare a national emergency on the false premise of massive Chinese interference in the electoral process, especially main-in ballots and stop / ask the courts to stop counting mail ballots until the extent of foreign interference is fully investigated.

    Democrats will challenge the emergency in the courts. Courts will take their own time in deciding through the initial litigation and appeals process.

    Simultaneously, Republican operatives can start challenging mail ballot counts in all swing states. Since mail ballots need signature verification, they are easy to challenge. Even frivolous challenges take time to resolve.

    Republicans don’t have to win any of these arguments, they just have to run out the clock, making it impossible for key swing states to certify the election before December 20 deadline.

    In that case no candidate gets the required 270 electoral college votes, throw the election to the House and since Republicans hold 26-23-1 contingent majority, Trump gets elected as President after losing the election.

    What are your thoughts on this post election risk?

    Thanks,
    Vivek.

    • David vun Kannon

      Republicans hold a majority in _this_ Congress, not necessarily the next one, which is the one that would do the voting in your scenario. I think Florida is close to evenly balanced as a delegation, and could flip to a Democratic majority, for example.
      However, in a real chaotic scenario even the House vote can’t be agreed, or the one third of the Senate on the ballot either. In that case, the remaining 2/3 Senate is the only part of the government between Jan 1 and Jan 20, but after that has the duty to elect the President. And since that 2/3 is controlled by Democrats, we get a Democratic President anyway.

  • Vivek Soman

    One quick add to my previous comment. In NY primaries held a couple of months ago, because of the deluge on mail-in ballots, it took 3 weeks to certify the election in absence of any challenges or court battles.

    So, it seems reasonable to assume that politically motivated challenges and court cases can drag the process out beyond the December 20 deadline in key swing states.

    Plus in states like Pennsylvania, where Republicans control state legislature, they can issue their own election certification picking a day during the counting process when Trump happens to be ahead in count. And if the mail ballot count is delayed, its quite possible that Trump would initially lead in many of these swing states.

    Apparently there are no clear rules on how to resolve two competing certifications.

    Would love to have your thoughts Sam.

    Vivek.

    • Karl Chwe

      I don’t think your scenario is likely. First, the courts don’t count ballots. Election staffers do (actually machines do.) Second, Trump cannot order the election count to stop. Elections are managed and operated by the states. Third, running out the clock won’t help Trump. When his term ends, it ends. If there isn’t a POTUS elected by then, we don’t have a POTUS until one is. Fourth, the POTUS doesn’t need 270 electoral votes, they need only a majority of votes cast.

      I’m happy to be corrected if I’m wrong.

    • Sam Wang

      “Elections are managed and operated by the states”

      which is the point of our piece.

    • James Raymond

      Seems to me you’re really seeking legal opinions as to how courts might address sorts of ballot challenges or election result certifications. And those legal opinions would depend largely on the election laws in each state at issue.

      The electoral question, I think, is whether it will be close enough for any of that to matter, in any of the critical states. If the results resemble current polling, Biden really only needs one of WI, AZ, NC, or FL in addition to the relatively “safe” states.

    • Alex

      “Plus in states like Pennsylvania, where Republicans control state legislature, they can issue their own election certification picking a day during the counting process when Trump happens to be ahead in count.”

      A citation is desperately needed.

      This is the argument presented a few weeks ago by an article in The Atlantic, and it was based on absolutely nothing. PA election law does not have a place for the state legislature to “certify” the election or issue some kind of competing slate of electors. That function is given to the Secretary of the Commonwealth. To take it away, the PA legislature would have to pass a law, which would have to be signed by the D governor. This is all repeated if you click through the breakdown cited in this article.

      I really hope this little fantasy goes away, but it seems engrained enough now that it won’t.

    • Brian

      Your analysis misses some points. First is 3 USC 5, which says any disputes over presidential elections not resolved five days before the Electors meet are automatically resolved in favor of the state certification; therefore, continued litigation by trump would only result in his loss.

      In re Pennsylvania and other states, the appointment of Electors is determined by law and the legislature would have to pass a law before the election to say they will appoint the Electors themselves, which isn’t going to happen except in the trump-friendliest of states.

      Therefore, absent a case with a Trump-friendly legislature and a Trump-friendly governor but a Biden-friendly populace, there will be no second certification. Even then, an emergency application to the courts would quickly find such a move to be a deliberate attempt to disenfranchise Biden voters to benefit Trump voters, patently violating the Equal Protection Clause, and thrown out.

      In the best case scenario for Trump, this would result in such a state not appointing any Electors, lowering the threshold for Vice President Biden’s election.

  • ArcticStones

    The Presidential Election is one thing, and you address that. But in order to pass his agenda, and to confirm judges – including to the Supreme Court – Democrats will also need to retake the Senate.

    So my question is this: How large is the risk that DeJoy’s shenanigans with the USPS and mail-ballots, combined with other voter disenfranchisement, can have a decisive impact on which party controls the Senate?

    • ArcticStones

      No thoughts on the odds of Senate control being stolen? Anyone?

    • Sam Wang

      Currently close states, and what could happen:

      Montana: rural state, split control. Low risk.
      Kansas: rural state, recent history of partisanship. Moderate risk.
      South Carolina: mixed rural/urban state, single-party control. High risk.
      Georgia: single-party control, current issues of voter suppression. Very high risk.

  • ArcticStones

    Millions of Americans risk being evicted before election day. Those foreclosures are likely to disproportionately affect minority voters and other demographics that lean Democratic.

    What about the risk of Republican-controlled states eliminating votes, whether in-person or mail-in ballots, from foreclosed addresses?

  • Joseph Barrett Bland

    (From the article):

    “Trump has raised the specter of large-scale foreign counterfeiting of ballots, but this is prevented by bar-coding of ballots.“

    Just watched MSNBC. It was reported that bar code readers are being physically removed from post offices. Some have been found in dumpsters!

    Now, you link that action with the statement quoted above, and an extremely insidious attempt to disenfranchise huge numbers of voters is made possible: If you can’t run mail through bar code readers, you can’t verify that votes AREN’T counterfeit!

    “Sorry, but as a cost-saving measure, we removed the very tools that we needed. Just an accident, but now we can’t count those votes because they can’t be trusted.”

    • Brian

      The post office does not run the election; those barcodes are for the state election officials to scan.

    • James Orr

      As I understand it, the post office bar code readers are for the reading of coded ZIP information. The bar codes on the mail in ballots are for the identification of the ballot as having been sent to a particular voter; the USPO does not need this information and should not be reading those codes (they wouldn’t be able to interpret them, anyway).

  • Marc

    From the article: “In these states, elections officials can take steps to ensure that votes will be counted in an orderly manner, even if the mails are slowed. Such steps can include dropboxes, early voting, and relaxed deadlines.”

    By what mechanisms can election officials do the things suggested here? Would new laws be needed? New rules be made? Could they use their official discretion?

    Certainly many of these techniques would be open to court challenge…

  • larry buc

    [edited by Sam for accuracy]

    The biggest factor in mail performance is that about 1/8 of all Postal Service work hours are overtime. The Postal Service cannot function without OT. And the Postmaster General has announced that he is going to reduce the amount of overtime.

    I’m not saying that Trump and PMG DeJoy are planning this, but I think it could change the election, much more than other factors. The USPS has excess capacity to sort mail so removing a few sorting machines is unlikely to impact performance. The Service has enough cash and borrowing authority to last well into 2021. And taking a few blue collection boxes off the street won’t affect anything.

  • Matt McIrvin

    On the basis of the primaries, there’s now a worry that reliance on mail voting could sink Democrats just from a very large fraction of them being rejected for procedural reasons (particularly signature mismatches or missing signatures). The frequency of this apparently varies wildly from place to place so it’s hard to gauge.

    • Sam Wang

      I wonder what would be the equivalent of poll-watchers in this case.

      Are there particular states where significant problems emerged?

    • Matt McIrvin

      Good question! Also, I don’t think most people realize this, but some of these are also potential dangers of in-person early voting (in my state, at least, you’re basically filling out a mail ballot in person).

    • Matt McIrvin

      And to answer your second question, the worst problems were in New York, hardly a swing state.

    • Ken Lawler

      Sam, in Georgia members of the parties can observe the vote counting process at county election offices. They are also members of panels to review disputed absentee ballots, i.e. to determine voter’s intent when a ballot is oddly marked. I don’t know if they can observe signature verification upon ballot receipt. However, voters can check that their absentee ballot was counted. They are given a week to correct fix rejected ballots if, for example, signature didn’t match. So there is some poll-watcher-like activity.

  • Richard Worzel

    The one thing your analysis does not account for is the possibility of armed interference with polling places.

    If you assume that sending Green Men to Portland was a test run (and was successful because local authorities were not able to clear them in a timely fashion), then I believe it is possible Trump will announce a (pardon me) trumped up excuse to declare a national emergency. He will then dispatch Green Men forces to Democratic centers to block polling stations on the pretense of restoring order, but oddly enough, only in Democratic strongholds.

    Hence, for instance, without the Democratic votes in Philadelphia and Pittsburgh, Pennsylvania goes Republican. Ditto Detroit and Michigan, Milwaukee and Wisconsin, and so on.

    If this is done suddenly, on Nov. 3rd, there won’t be time to (a) get court injunctions, then (b) move forces into place to break the blockade. Trump then declares the vote final, even though major centers were prevented from voting.

    Far-fetched? Perhaps. But this individual is already facing many years in prison for breaking federal and state laws. What does he have to lose by breaking a few more? Cornered rats are the most dangerous.

    • Matt McIrvin

      The whole point of urging people to vote early (however they can) was to bank votes to get around this kind of interference with in-person voting, whether it’s violent or procedural or just from closure of polling places and fear of COVID.

      By threatening those alternate methods, and insisting that in-person on Election Day is the only legit way to go, the Republicans are trying to make sure no method is safe, with an eye toward discouraging voting altogether.

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