Election Policy Roundup #29: October Surprise?

Walter Olson

Number 29 in our series of occasional roundups on election law and policy, returning to the topic (also treated in June) of state and local preparations for last-minute disruptions and federal interference in the midterm elections.

• How serious is the danger that bad actors will subvert majority control of the House or Senate by refusing to seat duly certified winners? Among those who’ve raised alarms are retired judge J. Michael Luttig, David French, Steve Posner, and Andy Craig at The UnPopulist. On the other hand, Ned Foley points out that because the House is not a continuing body, the Speaker from the previous House has no role in the new one. Foley also discusses “rogue clerk” scenarios in the House, as does Matthew Seligman (“As a matter of positive law, I do not think this scenario is viable”). Derek Muller criticizes “fearmongering” and says “most scenarios get basic facts or law wrong.” Read and decide for yourself!

• Various laws on state books restrict election interference. Under what circumstances can states enforce those laws against federal government actors? [Danielle Friedman, Bryna Godar, and Emily Lau, State Democracy Research Initiative (University of Wisconsin School of Law); and coauthor Friedman interviewed by Bob Bauer at Executive Functions.] Even if the president finds some legal rationale for deploying armed personnel to the polls, federal as well as state law will continue to impose significant constraints [Dan Maurer, Lawfare]. With certification a key target for bad actors to disrupt, “State officials have several legal tools available to respond to any certification issues that arise—and to help prevent them in the first place” [Brennan Center; more from colleague Patrick Eddington].

• A report predicts the rollout of mass-generated voter challenges this fall, although challenges of that sort don’t seem to have been very effective thus far [Andrew Garber, Brennan Center; David Lightman, News from the States]. 
• “Conservative activists say that declaring a national emergency would allow Trump to assert sweeping authority over elections. They’re wrong.” [Anna Bower and Molly Roberts, Lawfare; Devon Ombres, Michael Sozan, and Gréta Bedekovics, Center for American Progress] Even more bizarre and magical is a theory of emergency powers shared by a betting executive and TV host last week, which drew from Trump the reply, “Stranger things have happened” [James Sample, Rick Hasen].
• One preelection scenario some foresee is a proclamation from Washington declaring some current categories of voting machines or equipment unacceptably insecure. A cybersecurity firm landed out in the cold with the administration after diagnosing election system vulnerabilities but finding no evidence that any votes had been altered [David DiMolfetta, NextGov/​FCW].
• Among possible scenarios state election officials are preparing for is federal use of search warrants to seize voting materials while results are pending. Justin Levitt (Loyola Law School, Los Angeles) and John Keller (Georgetown University Law Center) argue that judges considering such requests should apply rigorous standards reflecting “the unique imposition that a federal seizure of election materials would entail” and should ordinarily mandate that copies of secure materials be made under local officials’ supervision, rather than that exclusive custody of originals be handed over [SSRN].