This is giving America’s election experts sleepless nights

The panel, a collaboration between the John S. and James L. Knight Foundation and the American Bar Association's Task Force on American Democracy, was the first in a series of seven online discussions for local journalists on state-specific voting issues in swing states.

The nonprofit Knight Foundation was founded in 1950 by the Knight brothers, who were previously newspaper publishers. With its billion-dollar endowment, the foundation funds arts, culture and journalism. The ABA's bipartisan Task Force for American Democracy, chaired by retired federal judge J. Michael Luttig and former Secretary of Homeland Security Jeh Johnson, analyzes and proposes solutions to threats to the democratic process.

Six more panels will be held in Arizona, Georgia, Michigan, Pennsylvania, North Carolina and Wisconsin over the coming weeks as close elections are expected, but at the Sept. 5 event, speakers provided an overview of the challenges and opportunities facing the nation.

“A presidential election is not a single election. It's 10,000 little elections across the country, in every county and every town across the country,” said David Becker, executive director of the nonpartisan Center for Election Innovation and Research, which provides free legal assistance to poll workers threatened with frivolous lawsuits.

Becker also helped develop ERIC, the Electronic Registration Information Center, which helps states update their voter rolls and purge them of deceased or evicted voters. ERIC has had strong bipartisan appeal in the past, but recently several states have pulled out of the network after giving in to former President Donald Trump's baseless conspiracy theories. North Carolina is not a member of ERIC, and the General Assembly has strongly opposed it.

Ben Ginsberg (left), David Becker (center), Bob Bauer (right). Donated photos

“Our elections are now as secure and verifiable as they've ever been, and it's not really close,” Becker said, explaining that 95% or more of voters this year will use paper ballots that can be verified with a high degree of certainty. “We should be very proud of our election system and be mindful of the fact that losing candidates may lie about that election system if they don't want to accept these results.”

That's exactly what happened in 2020, but the results of more than 60 cases brought by Trump campaign lawyers alleging irregularities nationwide showed no widespread fraud. That didn't stop fringe groups from continuing to spread false conspiracy theories about voter fraud in the 2020 and 2022 elections, including in North Carolina. According to conservative think tank The Heritage Foundation, North Carolina has had no verdicts in voter fraud cases since 2022, when five political operatives were convicted of mail-in ballot fraud designed to help Republican congressional candidate Mark Harris in 2016 and 2018.

“I am convinced because [courts] “If someone did this in 2020, they're going to hold litigants to standards of proof,” Becker said. “You can't take these cases to court and make claims on social media and expect a court to rule in your favor when you have no evidence.”

Another panelist, Ben Ginsberg, suggests that the electoral process consists of 12 phases – pre-election issues such as registration, voting issues such as early voting by mail or voting in person on Election Day, and post-election issues such as counting, certification or recounts – and that the country's robust, well-designed electoral system has built-in checks and balances at each step.

“There are safeguards in each of these 12 phases,” Ginsberg said. “The safeguards themselves are so elaborate and complex that we can't even attempt to mention them all.”

Ginsberg, a Stanford law professor and fellow at the university's Hoover Institution, has nearly 40 years of election experience, representing four of the last six Republican presidential candidates, playing a key role in the 2000 Bush-Gore vote recount in Florida and being appointed by President Barack Obama to co-chair the bipartisan Presidential Commission on Election Administration.

He is also a former reporter and believes that journalists should refute emerging allegations of electoral fraud by pointing to the safeguards in place to prevent fraud.

Becker also expressed some thoughts on what should happen if some of these protections were challenged.

“I think one of the first questions people, especially journalists, should be asking, especially when lawsuits are filed, is, 'Why now? Why are you taking this to court now?'” he said, suggesting that campaigns that suspect problems with the election process or administration in certain states should not wait until they lose the election to argue them before a judge.

“You can have the best field goal kicker in the league,” Becker said, “but if you lose the Super Bowl by one point, you can't complain that the field goals weren't worth five points.”

Still, some will, and some may try again to tamper with the certification of election results. Election officials in Cochise County, Arizona, were ordered by a judge to certify the results of their 2022 election after voting against it by a 2-1 margin, basing their votes on disproven claims about the county's voting machines. In 2023, the two election officials who refused were charged with crimes related to their actions. Now Georgia is trying to make actions like theirs legal.

“I think there is a bigger point at stake here: the threat to the public confidence in the electoral process that we have been trying to build since the failed 2000 presidential recount in Florida,” said Bob Bauer, one of the panelists who serves as co-director of the Legislative and Regulatory Process Clinic at New York University School of Law and was White House counsel to President Barack Obama from 2009 to 2011.

“Are we going to respect professional election administration and recognize that mistakes happen?” Bauer asked. “Or are we going to continue down a path where there is massive confusion about the role of election officials – about the rules they are supposed to follow – in a way that ultimately undermines trust in the process?”

Bauer explained that laws across the country recognize election certification at lower levels of government as a ministerial, non-discretionary duty and not as an opportunity for political sensationalism or interference in election administration.

“They don't have the legal authority to do that because they're not the ones legally empowered to make those decisions at this point in the process,” Bauer said. “Their responsibility is to take the information provided and the votes reported and make sure they're certified as the correctly calculated election result to give others the opportunity to review it and challenge it if they believe there was an error in the process.”

Becker accused the Republican-dominated North Carolina General Assembly of a “deeply disturbing attempt to politicize and deprofessionalize election administration.”

The proposal, which overcame Gov. Roy Cooper's veto, would have done away with five-member county election boards (which always have three members from the governor's party) and created four-member boards — two Democrats, two Republicans. If there were ever a tie on anything from election certification to early voting logistics, the issue would be resolved by the General Assembly.

“This is a recipe for disaster, and it was passed right before a presidential election,” Becker said. “Fortunately, the appeals court barred it, and the state Supreme Court doesn't seem willing to deal with it before the election. They might deal with it afterward, but this is a great example of a power struggle by the legislature over the fundamentals of the election that they are not properly qualified to deal with.”

By the end of the two-hour discussion, participants had spent a lot of time expressing their confidence in the electoral process and the nation's government. But when asked by moderator Tracie Potts, executive director of the Eisenhower Institute at Gettysburg College and a former Washington correspondent for NBC News, they admitted that a few things were keeping them awake at night.

Bauer said his biggest concern was not the electoral process itself.

“What I'm most concerned about are pressures coming from outside the system,” he said. “We haven't talked much about the role of social media and the importance of being really very vigilant … about what's going to circulate in a world where images can be manufactured with astonishing accuracy or verisimilitude. Claims can go viral faster than we can follow them, and we can be sure that there will potentially be other, more innovative forms of influence from foreign governments than ever before.”

On September 4, the Justice Department filed charges against two Russian nationals employed by the Kremlin-funded news channel Russia Today, alleging that they spent nearly $10 million to create and post pro-Russian propaganda on social media channels. Major right-wing influencers appear to have joined in through “persuasion,” but their rhetoric has long been aligned with the Kremlin's arguments on Ukraine, Trump, and the 2024 election.

As tension builds toward Election Day, Bauer says, voters will be impacted by external stressors that could deter them from voting and lead to a self-fulfilling prophecy that the election was “catastrophic.”

“By the way, this has the potential for violence and the potential loss of confidence in the election,” Bauer said.

Ginsberg said he agreed with Bauer about the loss of confidence, but added he was concerned about disruptions at polling places due to natural disasters.

Becker began by offering something that he said wouldn't give him sleepless nights, but ended with a chilling reminder of what does give him sleepless nights.

“I am as confident as I can be that despite all the efforts, all the machinations and all the lies that might emerge between November 5 and January 20, whoever actually wins the election will be holding the Bible on January 20,” he said. “But what worries me greatly is the fact that the opponents of democracy have been organizing for four years.”