INFORMATION AND RESOURCES ON POTENTIAL ELECTION CRISES
Given the various concerns related to the election, Citizens for a Strong Democracy is committed to providing information and resources that reassure leaders and the public on the strength and integrity of our elections. The guidance, analysis, recommendations and memos below were put together by the National Task Force on Election Crises, a diverse, cross-partisan group of more than 50 experts in election law, election administration, national security, cybersecurity, voting rights, civil rights, technology, media, public health, and emergency response. These resources serve to inform policymakers, the media, and the public about the role they can play in ensuring we have a free and fair election as well as a peaceful transition or continuation of power in January.
AUTHORITIES GOVERNING THE DEPLOYMENT OF TROOPS DURING THE ELECTION & POST-ELECTION SEASON
The National Task Force on Election Crises has put together a memo that responds to some of the most commonly asked questions regarding the laws and authorities for the possible use of federal or state military forces in the United States from early voting through the inauguration. Section I covers deployment under federal command; Section II covers deployment under state Gubernatorial control; and Section III is an overview of relevant election laws that apply to service member activities during election season. Read the memo here.
AUTHORITIES GOVERNING THE DEPLOYMENT OF FEDERAL LAW ENFORCEMENT DURING THE ELECTION & POST-ELECTION SEASON
Cities, counties, and states routinely plan for problems that could occur during elections, including election-related violence, and this year is certainly no exception. Law enforcement may be needed to respond to any incidents, yet security deployments can also have a suppressive effect on voting—one reason for the many federal and state laws governing law enforcement behavior at polling sites.
In general, however, the police power—including the power to police civil unrest—is reserved under the Constitution to the states, and the role of federal law enforcement is quite limited. The deployment of federal law enforcement in the election context would be inappropriate in most instances, could exceed statutory limits on federal jurisdiction, and could in some cases run afoul of voting-rights laws. This memo provides a high-level summary of the laws, regulations, and norms around the deployment of federal law enforcement with particular attention to the election season. Read the memo here.
VOTER INTIMIDATION: AN OVERVIEW FOR VOTERS & THE MEDIA
Voter intimidation is illegal and poses a clear threat to a free and fair election. State and federal voter intimidation laws cover a wide range of unlawful conduct. These laws prohibit anyone from threatening, intimidating, or coercing individuals for voting or related activities, including registering themselves or others to vote, or advocating for or against candidates. Anyone can commit unlawful voter intimidation, including private citizens, militias, candidates or campaign staff, election officials or volunteers, and state or federal law enforcement. Illegal voter intimidation does not necessarily require actual or threatened physical violence. Rather, any conduct that causes voters to fear exercising their right to vote or advocate for a candidate may be unlawful. Finally, illegal voter intimidation can happen before or during an election, or even after Election Day
The National Task Force on Election Crises offers this overview for voters, journalists, and other interested parties. Read the guide here.
STATE AND FEDERAL ELECTION CONTESTS: AN OVERVIEW
Elections in this country are almost always hard-fought and often contentious. Disputes as to how the election was conducted, which ballots are counted (or not), or who won the most votes sometimes continue well past Election Day. This has become a relatively normal part of our elections. Although perhaps imperfect, there are state and federal laws in place that address election-related fraud, misconduct, and other irregularities. In fact, most states have designed special legal proceedings specifically to adjudicate post-election disputes of this nature and implement remedies when necessary.
This paper provides a basic overview of those proceedings in key states, as well as relevant federal law. Read our overview here.
TASK FORCE MEDIA GUIDE: COVERING THE ELECTION BEFORE, DURING, AND AFTER NOV. 3
With COVID and the subsequent shift by millions of Americans to voting by mail, the Task Force is committed to making sure news organizations are prepared for this unprecedented general election — utilizing trusted experts, focusing on the process before projections, and starting now to properly frame disinformation to better inoculate voters against efforts aimed at delegitimizing the election on November 3 and beyond. Never before have so many Americans cast ballots by mail, and never before has the legitimacy of an election been under such strenuous attack by those seeking to game outcomes — it is critical that the media prepare and adjust to best serve the needs of the American public. The Task Force Media Summit, held on Oct. 17, provided critical resources and guidance for journalists covering the most fundamental aspect of our democracy: elections. Read our guidance here.
A STATE LEGISLATURE CANNOT APPOINT ITS PREFERRED SLATE OF ELECTORS TO OVERRIDE THE WILL OF THE PEOPLE AFTER THE ELECTION
The president is chosen by the Electoral College, which is composed of electors from each state. The Constitution delegates to Congress the choice of when presidential electors must be appointed, and to state legislatures the power to choose the manner of appointing these electors. In carrying out these constitutionally delegated powers, Congress has designated Election Day as “the Tuesday after the first Monday in November,” and for more than a century, all states have selected their electors based on the popular vote.
Although the power to choose the manner in which electors are appointed means that state legislatures theoretically could reclaim the ability to appoint electors directly before Election Day,1 they may not substitute their judgment for the will of the people by directly appointing their preferred slate of electors after Election Day. Nor may they use delays in counting ballots or resolving election disputes as a pretext for usurping the popular vote. Doing so would violate federal law and undermine fundamental democratic norms, and it could also jeopardize a state’s entitlement to have Congress defer to its chosen slate of electors. Read our guidance here.
THE ELECTORAL COUNT ACT & THE PROCESS OF ELECTING A PRESIDENT
The Electoral Count Act of 1887 (ECA) provides the primary legal framework for casting and counting electoral votes for president and vice president in accordance with the requirements of the Constitution. In addition to setting a timeline for selecting electors and transmitting their votes to Congress, the ECA establishes certain dispute-resolution procedures for the counting process in Congress—including when Congress receives competing slates of electoral votes from the same state. Together with the Twelfth Amendment, the ECA also sets out the limited, ministerial role that the vice president, as the President of the Senate, plays in counting the electoral votes. Read our overview here.
PREPARING FOR ELECTION NIGHT: Q&A WITH TASK FORCE MEMBER TREY GRAYSON
This election is shaping up to be unlike any in recent memory. In order to shed light on what to expect and how we can prepare to hold a free and fair election, we asked task force member and Former Secretary of State of Kentucky, Trey Grayson, some key questions for the fall.
What do you think Election Night will look like this year? View here.
What are some challenges election officials will face during this election? View here.
What role can the media play in educating the public about Election Day expectations? View here.
How should we prepare for Election Day uncertainty? View here.
LESSONS LEARNED FROM THE PRIMARIES:
RECOMMENDATIONS FOR AVOIDING A CRISIS IN NOVEMBER
Amid a global pandemic, economic crisis, and widespread civil unrest, the 2020 presidential primary season faced a unique set of challenges. Voters cast absentee ballots in unprecedented numbers to avoid exposure to a deadly disease; faced with shortages of poll workers and protective gear, election administrators consolidated the number of in-person voting locations. Yet the primaries also offered a compelling set of lessons that can and should be applied to effectively managing November’s general election. Our recommendations, distilled from these lessons, will help policy makers, election administrators, and the media to secure a free and fair general election. Read our post-primary report and recommendations here & the executive summary here.
NO, THE PRESIDENT CANNOT CANCEL OR POSTPONE THE GENERAL ELECTION
Unlike the primaries, which are governed by state law and take place on different dates across the country, federal law—which only Congress can change—sets November 3rd as the date of the general election. The president has no authority to change this date. The Constitution also significantly limits the ability of Congress to delay choosing the next president, even if it wants to—as under no circumstance can any president’s term be extended past noon on January 20th without amending the Constitution. Read our latest legal guidance here.
LETTER TO LEADERSHIP IN ALL 50 STATES AND DISTRICT OF COLUMBIA
In light of the challenges posed by COVID-19, it is imperative that governors, legislative leaders, secretaries of state, and state election directors mount an immediate effort to prepare for the worst in November and take action to protect the health of citizens in every state and D.C. as they participate in the 2020 general election — and that additional funding from the federal government be provided to help prepare. Read our letter here.
COVID-19 ELECTION GUIDE & EXECUTIVE SUMMARY
With the coronavirus crisis engulfing all 50 states, and primary elections shifting to accommodate public health concerns, the Task Force released its COVID-19 guidance for policymakers and election officials in preparation for November’s general election. This moment in our history proves that thinking through risks to a free and fair election is worth the effort: elections are, after all, the bedrock of our democracy. Read the Full Guide & Executive Summary.
