A Hidden New Threat to U.S. Elections

It’s been more than nine weeks since the Pennsylvania primary. The election is still not certified.

The reason: Three counties — Berks, Fayette and Lancaster — are refusing to process absentee ballots that were received in a timely manner and are otherwise valid, except the voter did not write a date on the declaration printed on the ballot’s return envelope.

The Pennsylvania attorney general has argued in court amid a lawsuit against those three counties that the state will not certify results unless they “include every ballot lawfully cast in that election” (emphasis theirs).

The standoff in Pennsylvania is the latest attempt by conservative-leaning counties to disrupt, delay or otherwise meddle with the process of statewide election certification, a normally ceremonial administrative procedure that became a target of Donald Trump’s attempts to subvert the 2020 contest.

It’s happened in other states, too. Earlier this year, Otero County, a rural conservative area in southern New Mexico, refused to certify its primary election, citing conspiracy theories about voting machines, though no county commissioner produced evidence to legitimize their concerns.

Eventually, under threat of legal action from the state’s attorney general and an order from the State Supreme Court, the commissioners relented and certified the county’s roughly 7,300 votes.

Pro-democracy groups saw Otero County’s refusal to certify the results as a warning of potentially grave future crises, and expressed worries about how a state might be able to certify a presidential election under similar circumstances.

The showdown in Pennsylvania is most likely less severe. The number of undated ballots is quite small, and if they had to, state officials could certify the election without counting those ballots, disenfranchising a small number of voters but preserving the ability to certify and send presidential electors to Congress (or elect a governor, senator or local official from the area). For now, the attorney general’s argument is to simply force the counting of every legal ballot.

“It is imperative that every legal vote cast by a qualified voter is counted,” said Molly Stieber, a spokeswoman for the attorney general, Josh Shapiro, who is now the state’s Democratic nominee for governor. “The 64 other counties in Pennsylvania have complied and accurately certified their election results. Counties cannot abuse their responsibility for running elections as an excuse to unlawfully disenfranchise voters.”

The battle over the undated envelopes in Pennsylvania also presages what is likely to be another litigious election season, in which partisans will look to contest as many ballots as possible to help their side win, seizing on technicalities and immaterial mistakes in an effort to cancel votes.

Election experts say that such sprawling legal challenges, combined with false accusations of fraud, could create chaos akin to the 2020 election aftermath.

“Had this unfolded on this kind of timeline in 2020, it really could have created problems, because there would have been questions about whether the state could have actually named a slate of electors,” said Robert Yablon, a law professor at the University of Wisconsin Law School. “You could imagine there being disputed slates of electors that were sent to Congress, and it could have been a big mess.”

The issue reached the courts last year, when the U.S. Court of Appeals for the Third Circuit ruled in a dispute over a judicial election that ballots could not be discounted because voters had not dated the return envelope’s declaration. The Supreme Court upheld that decision in June.

In Pennsylvania’s tight Republican primary race for Senate between Mehmet Oz, now the nominee, and David McCormick, a state court again ruled that the undated ballots must be counted, but also instructed counties to report two separate tallies to state election officials — one including the undated ballots, and one without them — should there be a later decision on appeal going the other way.

So far, there has been no new opinion allowing counties to not count the ballots. Local officials in each county have declined to comment, citing the ongoing lawsuit.

A pocket history of ‘Stop the Steal’

On Politics chatted on Thursday with Charles Homans, a New York Times reporter who just published a landmark feature article in The Times Magazine on the history of the “Stop the Steal” movement. Our conversation, lightly edited for length and clarity:

Your story is called “How ‘Stop the Steal’ Captured the American Right.” Was there ever any moment when that prospect was in doubt, or was it always destined to turn out this way?

It’s impossible to imagine it taking root as it has if Donald Trump had conceded the election. That is the categorical difference between him and previous presidents. And it is what has distinguished “Stop the Steal” from the skepticism, both reasonable and conspiratorial, that surrounded previous elections.

But if you look at the prehistory of the 2020 election, as I did in this story, it’s equally hard to imagine Trump conceding that election, or really any election. He was disputing the validity of elections he lost (and even some that he didn’t) going back to literally the first Republican caucus in 2016.

And starting in those 2016 primaries, he had an ally in Roger Stone, who was trying to build a movement around Trump’s false claims — and linking those claims to the then-current preoccupation on the right with settling refugees from Syria and other predominantly Muslim countries.

That connected Stop the Steal, from the beginning, to a whole cosmology of far-right conspiracism that extended well beyond Trump himself, and which you can still see reflected in the movement today.

Do the politicians promoting Stop the Steal really believe this stuff? Or are some just playing along for political gain?

Some do and some don’t. There are also Republican strategists and even some Stop the Steal activists who will complain (though rarely on the record) that the pursuit of the most baroque and obviously conspiracist claims about the election have given a bad name to what they argue would have otherwise been more credible arguments — in particular challenges to the legality of the expansions of absentee voting provisions and infrastructure in response to the pandemic in 2020 in some key states, which are generally thought to have helped Joe Biden.

Those challenges have found success in the courts in only one state, Wisconsin, and no one has demonstrated that the expansions in question led to meaningful fraud (a point that even the conservative law firm that brought the Wisconsin lawsuit has made).

But they do exist on a spectrum with the legal battles over voting rights that have played out between Republicans and Democrats and civil rights groups for years — the battles that William Barr, Trump’s former attorney general, is reportedly joining now — and don’t rely on proving a vast conspiracy of voting-machine manufacturers or finding bamboo fibers on ballots.

The grass-roots activists who are most intensely engaged in the project of overturning the 2020 election, however, are often very invested in the voting machine conspiracies and a range of other unproven or debunked claims. So are the figures who have invested the most money in the cause, like Mike Lindell, the MyPillow chief executive, and Patrick Byrne, the former Overstock.com chief executive.

And of course, so is Trump, who personally directed his Justice Department officials to run down some of the most out-there claims, and who has continued to repeat them since.

One takeaway from your story is that Trump has used this fantasy of a stolen election to solidify his hold over G.O.P. base voters. Yet it’s also driven many Republican elites and college-educated voters away. Help us assess the political costs and benefits.

As Trump’s claims about the election have hardened into a tenet of Republican orthodoxy, they’ve paradoxically become less tied up with him personally. They have become part of a more generalized story the right tells about the groups it perceives as its enemies — Democrats, “RINOs,” the media, the intelligence community, state-level bureaucrats — and the supposed lengths they’re willing to go to keep the right’s champions out of power.

Trump is a martyr in that story, and of course remains by far the largest-looming figure on the right. But I don’t think a restoration of the Trump presidency is a singular goal of even the movement crystallized around the false election claims.

To your second point, there are obvious limits to this view of politics when it comes to winning over anyone who’s not already a partisan. What I wonder, though, is how much these views matter to voters who are not especially partisan or particularly engaged.

The polling around this subject has consistently shown an asymmetry that clearly benefits Republicans: Republican voters are highly worried about threats to democracy (which they presumably define in Trump-aligned terms) and Democrats are much less so.

This is where the Democrats’ tactic of openly helping some of the most Stop the Steal-minded candidates in this year’s Republican primaries, aside from its cynicism, also strikes me as strategically dubious insofar as it presumes that their views on the 2020 election are something that swing voters will actually hold against them.

A certain religious fervor runs through the “Stop the Steal” movement. To what extent do conservative Christians see Trump as a kind of Messiah-like figure? And if they do, does that help explain the passion behind the belief that he was robbed of a second term?

I don’t think that even many far-right Christians view Trump as a Messiah-like figure. They did broadly view him as someone who was willing and able to deliver a country that was governed in accordance with their view of Christianity and its relationship to the state.

I’m talking here about the set of beliefs (discrete from, if often overlapping with, conservative evangelical Christianity) that are sometimes described as Christian nationalism: the belief that America is a fundamentally Christian nation whose founding documents were divinely inspired, and which is meant to be governed accordingly, whether or not its leader is particularly pious.

That’s different from the kind of conservative evangelical politics that were ascendant in this country 20 or 30 years ago, and it is very prominent in Stop the Steal. I think it does inform the passion behind the belief in Trump’s false claims, but it also helps explain the fervent support for the efforts to overturn the election even among people who may not really buy this stuff.

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An illuminating image

On Politics regularly features work by Times photographers. Here’s what Cheriss May told us about capturing the image above:

When presidents return to the White House late at night or early in the morning, it’s usually quiet and uneventful.

But President Biden’s arrival home from his trip to the Middle East was a bit different.

As he got back in the early hours of Sunday, I focused on him inside Marine One and noticed that he was illuminated by a bluish glow inside the aircraft as he spoke to the pilot and gave him a thumbs-up.

It reminded me of the 1985 martial-arts movie “The Last Dragon,” when Taimak gets “the glow,” which gives him an extra burst of energy. At that moment, I knew it wouldn’t be the typical early-morning presidential arrival.

Thanks for reading. We’ll see you on Monday.

— Blake

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