3 weeks ago
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Everyone knows that you don't change the rules in the middle of the game just because you don't like the way the game is going — everyone, that is, except Donald Trump and his MAGA allies.
Four years ago, they complained bitterly that states were not following long established rules in the conduct of the presidential election. Today, Trump and his friends have changed their tune, with a well-developed strategy designed to make sure that the rules of the 2024 election will rebound to their advantage.
It has already produced results.
The Brennan Center for Justice reports that “between January 1 and December 31, 2023, at least 14 states enacted 17 restrictive voting laws, all of which will be in place for the 2204 election.” Backed by the former president, those changes will mean voters "now face additional hurdles to reach the ballot box.”
The report goes to on specify: “Most of the restrictions limit mail voting, such as requiring additional information on a mail ballot application, shortening the window to request a mail ballot, or banning drop boxes.” In addition, “at least six states enacted seven election interference laws....Many create criminal penalties for election workers for minor mistakes such as not allowing a poll watcher to stand close enough to voters.”
Such efforts did not end last year. They are continuing even as voters in several states have already started casting their ballots.
Last week, we saw new evidence of these efforts in Nebraska and Georgia. Those efforts are nakedly partisan and threaten to throw a wrench into the campaign as it enters the home stretch.
State legislators and election officials in those and other states must remember that their duty is to ensure the fairness and integrity of the electoral process, not follow the MAGA playbook. They should be guided by the wisdom of the “Purcell Principle,” which, as SCOTUSblog explains, holds that “courts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election.”
That principle derives from the 2006 Supreme Court case Purcell v. Gonzalez, which dealt with an Arizona law (Proposition 200) “requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day.”
A lower court had barred Arizona from enforcing Proposition 200 a mere four weeks before the 2006 midterm elections. The Supreme Court was troubled by such a change in election procedures “just weeks before an election."
"Court orders affecting elections," the justices wrote, "can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”
Strictly speaking, the Purcell Principle applies only to courts. But its concerns about voter confusion, and the possibility that late rules changes might have a deleterious effect on voting, should be the concern of legislators, election officials and even candidates for office, not just judges.
Trump and his allies care less about the possibility of voter confusion and keeping voters away from the polls than they do about changing the rules to gain electoral advantage.
Just look at what they tried to do in Nebraska. According to a state law adopted in 1991, the state does not “use the winner-take-all approach to awarding electoral votes. The winner of the popular vote gets two electoral votes, while one is assigned to the winner of each of the state’s three congressional districts.”
It is one of only two states, the other being Maine, that awards its electoral votes in this manner. Nebraska Public Media notes that bills recently “have been introduced in Wisconsin, Michigan, and New Hampshire to go to a split electoral system, but they’ve stalled in legislatures.”
Nebraska is a reliably Republican state. The last time it voted for a Democratic presidential candidate was 1964.
But twice — in 2008 and in 2020 — its Second Congressional District, which includes Omaha, cast its one electoral vote for the Democratic presidential candidate. The first time, it went to Barack Obama; the second time was to Joe Biden.
With the 2024 election being a toss-up, Team Trump launched a full-court press to get the state’s Republican-dominated unicameral legislature to change its election laws. As ABC News reports, he wants “to reapportion the three electors awarded to the winner of each of the state's three congressional districts, instead awarding all five of them to the overall victor of the state.”
All five members of Nebraska's congressional delegation have vocally supported Trump’s desire to change the rules. On Sept. 18, they wrote a letter to their state legislative colleagues saying that “the state should speak with a united voice in presidential elections....After all, we are Nebraskans first, not members of Nebraska's three congressional districts.”
Trump himself has intervened, speaking to at least one Nebraska legislator about the need for the change.
Leaving no stone unturned, he dispatched the ever-loyal Sen. Lindsey Graham (R-S.C.) to go to Nebraska and lobby on his behalf. Between now and Election Day, Nebraska officials can expect more calls from Trump and visits from MAGA luminaries.
While it appears the move has been thwarted in Nebraska, thanks to Gov. Jim Pillen's failure to call a special legislative session, the Trump strategy of changing the rules in middle of the game has been more successful in Georgia.
Last Friday, less than a month before early voting begins in that state, the Georgia State Election Board approved a rule change “requiring counties in the critical presidential battleground to hand-count the total number of ballots this year.”
The Washington Post explains that “the move was spearheaded by a pro-Trump majority that has enacted a series of changes to the state’s election rules in recent weeks and approved the hand-count requirement despite a string of public commenters who begged board members not to.”
The new rule “requires the hand count to take place the night of the November election or the next day.” Election officials from across the state said that doing so “would be physically impossible in all but the smallest counties,” and Chris Carr, the state’s Republican attorney general, said “that state law does not permit hand-counting ballots at the precinct level.”
But to no avail.
If Trump does not win Georgia, the new rule seems likely, as the New York Times put it, to “significantly delay the reporting of results in the battleground state” and inject the kind of chaos into the 2024 election that the Supreme Court has warned would accompany late changes in election rules and procedures.
If Trump loses, Americans need to buckle up and ready themselves for a post-election period every bit as difficult and damaging to democracy as what happened after the 2020 election.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.
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