With early voting already underway, one might think that the rules of the game for November’s election are set, and that it will all just come down to turnout, as the cliché goes. Well, not so fast. In North Carolina, Georgia, and Nebraska, at least, Republicans have been looking for ways to make last-minute changes to the rules to their advantage in the hopes of eking out a presidential victory for Donald Trump that seemed all but assured a few months ago. Although most of them are unlikely to matter, the one in Nebraska just might work.
American elections are uniquely decentralized and directed in part by partisan actors. And those two factors provide the predicate for the voting wars, where political parties drive rule changes that they hope or expect would give their party an advantage in a close election. With enough time, voters adapt to rule changes, and so rule changes often don’t have their intended effects to give one side a leg up.
But changes at the last minute present challenges for voters and for election administrators, not to mention campaigns that are designed under the rules as they are written. Ballots must be printed, poll workers trained, and procedures set to assure transparent ballot tabulation and a fair and accurate vote count.
Just look at what happened in the recent fight over whether Robert F. Kennedy Jr. would appear on the ballot. The independent candidate fought as hard as he could for ballot access until he dropped out of the race and endorsed Donald Trump. Then he fought as hard as he could to get taken off the ballot in swing states out of fear that he could siphon votes away from Trump. The fight over removing him from the ballot went as high as some state Supreme Courts. In North Carolina, the Republican-majority state Supreme Court required RFK Jr.’s name to be removed from ballots even after ballots were already printed. It was a considerable expense for counties to reprint ballots. Fortunately, thanks to the Herculean efforts of election officials, ballots got mailed out on time.
Whether Kennedy’s removal from the ballot will help Donald Trump in North Carolina seems questionable given the controversies with the state’s Republican gubernatorial candidate Mark Robinson, which will probably depress Republican turnout in the state overall.
The situation is more serious in Georgia. There, the state election board, which is dominated by Trumpian election-deniers, has enacted a series of last-minute rule changes that could muck up the timing of ballot tabulation in an apparent effort to delay the reporting of results in the event that Vice President Kamala Harris is ahead on Election Day.
Among the just-approved changes is one to require a hand count of the number of ballots on Election Day. It’s a change that the Republican state attorney general has said is illegal and one that is opposed by both the Republican Secretary of State Brad Raffensperger and local election officials.
Even if one favors hand-counts of ballots—a procedure that is far less accurate than a machine count followed by a hand audit of a sample of ballots—it is insane to roll out a change this late in the election process. There is simply no time or personnel available to get this done.
It appears likely that Georgia courts will stop at least some of the rules being passed by this Georgia board, a board without experience in election administration and that appears to be motivated only by the basest of partisan motives. But if some of these rules survive, we get to Election Day, and partisans seek to use these rules to block certification of the final result, expect more lawsuits to make sure that certification of the count happens on time as required under Georgia law.
As I recently explained in the Wall Street Journal:
It is unlikely that frivolous attempts to delay certification would prevent a state from submitting its Electoral College votes to Congress in time. State legislatures set certification deadlines, which should override administrative foot-dragging even if sanctioned by state election boards. State courts and federal courts would likely intervene to make election officials do their jobs and prevent disenfranchising a state’s voters from participating in the presidential election.
Ironically, the so-called independent state legislature theory could be what dooms the Georgia hand-count proposal. Georgia’s attorney general argued that the Georgia board’s rules are inconsistent with the rules the state Legislature has mandated for ballot-counting. Under the Supreme Court’s 2023 Moore v. Harper decision, state courts cannot “arrogate” for themselves the power to set the rules for conducting federal elections. So too with (Trumpy) state election boards.
Meanwhile, the so-called Purcell principle—an inconsistently applied Supreme Court doctrine that discourages last-minute changes by federal courts in election rules to prevent voter and election administrator confusion—cannot apply to stop any of these changes, which are not being made by federal courts.
It’s a very different situation in Nebraska, which is considering a last-minute change to how the state allocates its Electoral College votes. The Constitution gives states the ability to set the manner for assigning presidential electors, and in every state but Maine and Nebraska, states do a winner-take-all allocation. Nebraska and Maine assign a portion of their electors by the winner in each state’s individual congressional districts, and the district around Omaha is one that Democrats are hoping to win.
Republicans had talked earlier in the year about making Nebraska a winner-take-all state in the hopes of getting all the state’s Electoral College votes allocated to Trump. In response, Maine, dominated by Democrats, contemplated a retaliatory move to deprive Republicans of their chance to win one of Maine’s congressional districts. But because of state laws, it would be much harder for Maine to make a change now with less than two months until the election. So, Nebraska Republicans are reportedly looking again to strike.
If Nebraska but not Maine changes its Electoral College rules, this increases the chances of a 269–269 Electoral College tie. Such a tie would be resolved under special rules in the Constitution’s 12th Amendment where each state’s delegation in the U.S. House of Representatives gets one vote, a voting procedure that is likely to benefit Donald Trump.
The Constitution gives states wide latitude in setting the rules for choosing presidential electors; heck, the United States Supreme Court in the Bush v. Gore case ending the disputed 2000 election and handing the election to George W. Bush wrote that state legislatures could take away voters’ rights to vote for president at all in future elections, and assign the electors directly themselves. So it is hard to see that any federal litigation could stop this change if it is done.
All of this points to an unfortunate and frightening reality: We may have entered a new phase in the voting wars punctuated by last-minute changes in the rules. That would be a serious escalation, and one that stands only to increase bitter partisanship and cynicism about politics being more about gamesmanship than about a fair contest for allocating political power. If Republicans play these games now, it’s only going to escalate on both sides going forward.
