Election Stress Test: Can America's Electoral System Weather 2024?

Nate Persily: While we still have some of the concerns that I think we had in 2020, the first post-insurrection presidential election is one in which, you know, we’re administering it in under sort of unprecedented levels of lack of confidence in the electoral system and also polarization about the electoral process.

Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Rich Ford with Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all of our new episodes as soon as they’re available.

We’re very fortunate to have our colleague Stanford Law Professor Nate Persily with us today. Nate’s scholarship in legal practice addresses issues such as voting rights, political parties, campaign finance, redistricting, and the law of the election administration, and he served as special master for legislative redistricting plans for Georgia, Maryland, Connecticut, New Hampshire, New York, North Carolina, and Pennsylvania. He’s also served as the Senior Research Director for the Presidential Commission on Election Administration and as a Commissioner on the Kofi Annan Commission for Elections and Democracy in the Digital Age.

He’s the co-founding director of the Stanford Cyber Policy Center and its program on Democracy and the Internet, as well as on the Stanford MIT Healthy Elections Project. Welcome, Nate. Here we have an election coming up pretty soon, and it’s an election that might be somewhat close and about which there are very polarized opinions.

What are some of the main challenges that you see coming toward us in November and beyond? 

Nate Persily: I think I would sort of group a lot of my concerns about this election under the heading of voter confusion. I’m worried about the lack of confidence that voters have, many voters have in the electoral system, and then, how recent changes are going to increase those anxieties, and so every state has changed its laws, or almost every state has changed its laws since 2020 to deal with the elections in either larger or smaller ways, sometimes more restrictive, sometimes more permissive, and we’ve had close to a third of the election officials around the country have resigned since then, and so you’re going to have a lot of these novice election officials dealing with these new laws in the polling place, and they’re doing so in an environment of unprecedented pressure and scrutiny, particularly on social media. Many of them have even received death threats and, you know, had all kinds of other pressures put on them, but sometimes by elected officials, sometimes by these outside groups, and so while we still have some of the concerns that I think we had in 2020, the first post insurrection presidential election is one in which, you know, we’re administering it in under sort of unprecedented levels of lack of confidence in the electoral system and also polarization about the electoral process.

Pam Karlan: I mean, when you say we, I think it’s worth reminding our listeners that although this is a national election in one sense, we’re electing the national chief executive, the president, it’s being run by 8,000, at least, different election administration units, if you will. In some places it’s counties, in some places it’s townships and the like, and does that pose special problems when you have a national election that’s run in so many different ways in so many different places? 

Nate Persily: So decentralization is, in some ways, the defining feature of the American electoral system when you look internationally. It’s one, it’s something that we, you know, complain about because the quality of democracy often will depend on where you live in the United States, but at the same time, it is a buffer against, whether it’s, you know, one party at the national level taking control or even sometimes at the state level. This kind of local decentralization and autonomy does provide some kind of bulwark, but here are the concerns that I think, related to this election, that are exacerbated by the decentralization.

As has been sort of widely reported, there are many counties or local jurisdictions in the U.S. that now have elected or appointed election officials who might likely not certify the results of this election, right? 

Pam Karlan: What does that mean?

Nate Persily: And so what it means is that some of these local officials literally might not say, these are the numbers of votes that were received by each candidate, and they are not official, and so therefore, the state cannot officially tally the the number of votes at the state level, and then declare someone to be a winner, and so the certification process is basically the stamping of approval of the numbers of votes that were received by the particular candidates, and it’s legally significant, of course, when it comes to the presidency because the Electoral College then meets and then based on the certified results, you get a slate of electors that is sent to the House of Representatives, and so you have, you know, all kinds of different election officials that may be doing all kinds of different things, and so that decentralization combined with this willingness now to break some of these established norms could pose a problem. 

Pam Karlan: So maybe one thing that would be helpful is to kind of walk through the election process from kind of beginning to end from a voter’s perspective, so one thing is, since the 19th century, the Election Day in the United States has been the first Tuesday after the first Monday in November, but that’s really changed over the last, say, 10 or 15 years.

Do we actually even have an Election Day anymore? 

Nate Persily: We have an election month at this point, and actually sometimes an election two months. If you look at when the ballots are printed and then when people start voting, and so it depends on the state, of course, but the transformation that has been underway as you said over the last two decades, but particularly reached its apex in the 2020 election, is the fact that a majority of Americans voted in some format before Election Day. Now, of course, COVID was an accelerant for that, but those were trends that were sort of rising already, and so you’re going, there are plenty of states like Oregon and Washington and Colorado and Utah that are all vote by mail.

We here in California are almost, you know, 80 percent or more vote by mail, as is Arizona, and then there’s been an expansion of vote by mail, you know, throughout the West, but also after COVID in some of the Eastern states, and then even those states that don’t have robust mail voting percentages, you’ll get early voting, early in person voting in places like Texas and Florida, et cetera.

So, the voting is going to take place in some states in short order after the Democratic National Convention in late August, and so this process, as you said, it’s not a voting day anymore. It’s a voting month or voting six weeks, and that is, I should say, a kind of bright spot in terms of election administration, because we hopefully will be able to determine problems early on if there are issues that are coming up in, you know, in September and October. It also is somewhat of a buffer against, say, a hack that would just affect Election Day votes, since maybe as, you know, much as 60 percent or more of the votes will be cast before Election Day, and so, alright, so but you asked about what is the life cycle of an election?

You’ve got, the candidates have now been effectively determined. The ballots will be printed. They will then be mailed out at least 30 days, but much more than 30 days, out for military voters and other folks abroad. You’ll then have a period of early voting in most states, either through extensive vote by mail or in person voting, and most of the in person early voting happens in the say the two to three weeks before the election. Then you’ve got Election Day, and during that process, going building on the theme you said about local diversity before, some states will do what we call pre-processing of ballots, so that the mail ballots will actually be validated and verified and their signatures checked and things like that.

When they are received or at least close to the Election Day in some states like Pennsylvania, they will not be opened before Election Day. Then once the polls close on election night, then there’s the process of counting the ballots and different states have different rules as to, for example, whether mail ballots that are received after Election Day are counted.

Then you have a process of counting. There’s potentially recounts. You have local boards that then certify the results, and then there’s a certification at the state level, which leads to for the presidential election, then certification of vote totals that will then be a lead to the electoral slate being sent to Congress, and then we saw how that process works four years ago where the Congress will then essentially validate the election. 

Pam Karlan: So I guess the other thing to note is, you know, when you talk about validating the ballots or people send in ballots that there’s something wrong with them, or people show up at a polling place and it turns out they’re not on the registration rolls, they are like. What happens to those folks?

Nate Persily: Well, under the Help America Vote Act, anyone who shows up at a polling place in a federal election has the right to cast a ballot. Now, if they don’t have, say voter ID, or if their name, if they never registered, voter ID in a state that requires voter ID, there may be other processes that are work, but everyone has the right at least to cast a provisional ballot based on the Help America Vote Act.

Now, those provisional ballots then are either adjudicated after the election or otherwise cured by the voters if there might be a problem, so for example in some states if you go to the wrong polling place and then you vote the ballot, but you are actually registered, they will count the offices for which you were eligible to vote.

Pam Karlan: So if you go for example to the polling place on the west side of town, and you should have gone to the east side, your vote for president and Senate and governor account, but maybe your vote for the local city council won’t because you were in the wrong place. 

Nate Persily: That’s right, and so, you know, there’s, again, different states have different rules on this, so anyone listening, please go to the right polling place if you can, but if you’re not registered to vote, you’re not eligible to vote. I mean, many states have same day registration, so you can register there, but in those states that don’t, if you, if you show up at the polling place and you cast a ballot and you’re not registered, it will not be counted, and so, or if you’re otherwise ineligible, but you will have the ability to cast a provisional ballot that no one can take that away because that’s a federal right.

Rich Ford: So these election officials, Nate, that you were talking about earlier, they’re going to have to administer all of these rules. Some of which sound a little bit complex, and I wanted to go back to something you said earlier, that on the one hand, the election officials are under a lot of pressure, and many voters are skeptical. At the same time, there are some, it sounded like you were saying there are some election officials who maybe we should be skeptical of, who will be likely to refuse to certify the ballots if they don’t like the outcome? 

Nate Persily: Well, so that’s the sort of newer development in the last few months in terms of election administration is that there are some election officials who’ve been identified as either previously or likely in this election to refuse to certify.

I think I am personally not as concerned about that as a lot of other people. There is a process to deal with that. Now, it’s going to be messy, and that’s why I go back to this idea of confusion and all the dust that’s going to be sort of created in this election. In the event election official refuses to certify, you go to court and you order them to certify the election, and there is a process, but, you know, that it will be another opportunity for people to say that there’s dysfunction in the electoral system. My general view is that we really need to get behind the army of election officials who are administering this election because they need a lot of love and support right now.

They need money. They need volunteers, and they need people to kind of vouch for the integrity of this election because there is, you know, a growing chorus of people who are casting doubt on the process. 

Pam Karlan: I think one of the things we’ve kind of seen is that at the front end, Election Day has now become many days, as you say: a month, two months in some place, and Election Day kind of is not election night is not necessarily the time that we hear the results. That can be a week or two before certification, and in some states there are requirements for recounts if the margin of victory between the top two candidates isn’t large enough and the like, and that’s totally fine, right? I mean, we shouldn’t be concerned that we don’t know on election night who won. 

Nate Persily: Right. Well, and not only that, we need to kind of build up our resilience in not thinking that there’s a problem if we don’t know whether all 160 million ballots have been fully counted by election night, right?

And it is a huge undertaking, and we saw last time how this played out where, you know, we didn’t really know until about three days after the election that Joe Biden had won, and part of the challenge here is that because there’s been a kind of partisan bias in who is voting by mail and who’s not voting by mail, because of all the doubts that have that Donald Trump has cast on vote by mail, it’s not surprising that then, that the outcome in particular states will change as the mail ballots get counted. That’s one of the reasons why it’s so important to do the pre-processing of ballots and why states really need to change their laws so that you can validate these mail ballots before Election Day and then count them with the other ballots, but you’re right, which is that we don’t not have just election night, we’ve got election week, which follows not just voting day, but voting month, and we should expect, you know, and be patient for the counting. I do think places like California, which allow ballots to kind of come in over like two weeks after Election Day is probably too long and that we need to kind of stop the madness a little bit, but.

Pam Karlan: I mean, those are the people who put their ballot in the mail by election night. You can’t vote after the election. 

Nate Persily: That’s right. That’s right. You still have to have your ballots mailed on or before election day and postmark, but as you said, we all need to be patient and not expect to know the winner on election night, and those who either declare victory or cast doubt on victories on election night need to sort of hold their fire.

Rich Ford: So it’s a pretty typical thing then that on election night, people begin, the media, for instance, begins to project the winner or something like that, and in the past, those projections have usually been accurate. How likely do you think it is that that’s going to become a problem in this election where people have projected a winner before all the ballots are counted and the litigation is over and all the rest of it?

Nate Persily: Well, the models that we use in order to project from actual results have been relatively good. Now the, you know, the hard part is in a very, very close election with a lot of outstanding ballots, do the media organizations rush to project a winner? I mean, the most dispositive moment I thought in the 2020 election contest was when Fox News called Arizona because that then sort of created the kind of consensus that Joe Biden had won the election.

We’ll see whether there is willing to do so if that’s the result this time because there was certainly a lot of blowback to that, but the models that are used are, you know, you base it on the votes that have come in and then the votes that are outstanding and then how likely they are to go one way or the other.

I personally think that we should, you know, for the same reason we need to be patient as the, and to allow the counting to proceed, we should be also cautious about early calls of these states, particularly the battleground states, and that we should, you know, wait until we’re really, really confident before those calls can come in.

I mean, it is crazy, isn’t it, that we trust principally the Associated Press, but also these other media organizations to be the kind of arbiters of who really won the election. Because, as you said, the consensus that emerges from those media calls ends up being the thing that leads to certain candidates to concede the election, even before millions of votes have been counted.

Rich Ford: Nate, one thing that we hear a lot about in the media is the impact of technology on these elections, new technology, AI, deep fakes, and so how do you see, you know, Russian bot farms, a whole series of kind of technological challenges to the election that are new. How do you see those playing out in the election?

Nate Persily: So I think that AI does pose a real challenge to democracy, but not in the way that most people think. I think that, you know, the current model of fear with respect to AI is that there will be deep fakes, sort of synthetic video, fake video of one of the candidates that will be released in October that then will sway a certain number of voters to vote a particular way.

Let me be clear. There will be thousands of deepfakes and synthetic videos that are out there. In fact, you can go online right now, and there is still a deepfake debate between avatars of Donald Trump and Joe Biden 24 hours a day on the platform Twitch. They haven’t replaced Joe Biden with Katherine Harris yet, but maybe that’s to come.

Or Kamala Harris, sorry. 

Pam Karlan: Yeah, I was going to say. 

Nate Persily: Election administrators. 

Pam Karlan: That’s a walk down memory lane.

Nate Persily: For the listeners, Katherine Harris was the secretary of state in Florida in the 2000 election, but so there are going to be thousands of examples of these deep fakes and synthetic imagery, but the real question is, how likely is it that a significant share of voters are going to be persuaded by this?

What I think is, and I think that is not terribly likely. You know, once these deep fakes emerged there, certainly there are going to be adherence to, you know, one particular candidate’s team who then are, you know, amplifying that and but it’s more of like tribal reaffirmation as opposed to, I think, persuadability, but what I am concerned about and what we’re seeing already with Donald Trump’s accusation that Kamala Harris used AI to inflate her crowd sizes is that the scare and fear related to AI is going to further degrade our trust in true media, and so whatever one might say about the pervasiveness of deep fakes, they’re going to represent a tiny, tiny share of the media consumption that, you know, most Americans have during the election, but the doubt that’s created by that tiny share of synthetic media, then is going to be used by political elites to cast doubt on the remaining 99.999 percent of actual, you know, sort of true media, and that I think is a, it’s not an existential threat to democracy, a, you know, further degradation of the information ecosystem that we’ve seen over the last decade. 

Pam Karlan: And are you worried about the, in addition to the kind of content of the campaigns, and the like, and are you worried about disinformation and AI being used to give voters misinformation about things like when to vote and the like. The kind of modern day version of the robo calls telling people in your precinct people are supposed to vote on Wednesday is not Tuesday or whatever. 

Nate Persily: And we saw that already in the New Hampshire primary where a synthetic voice was used for Joe Biden where it was misleading people to vote.

I think stuff like that will happen, and it’s, you know, illegal and should be prosecuted. I don’t think it’s going to be as pervasive, and in some ways, I think the media amplification of it might be worse than what’s actually happening on that. As I said before, the thing that concerns me is that you’ve got voter confusion over a lot of the new laws, and then you’ve got novice election officials that are implementing it, and so, yes, if there is a very well done disinformation campaign related to the voting process, it might have an impact in certain areas but, you know, I think it’s going to be very hard to do that in an undetectable way, and what I’m more concerned about is the, you know, the slow deterioration of people’s faith in actual true media.

That by the way, is what we’re seeing around the world. You didn’t see, whether it’s in the British or French elections or Indonesia or the EU or India, you didn’t see a huge number of sort of deep fakes that had persuasive capabilities, but what you did see was politicians disclaiming true stuff as being fake, and so, you know, we’re now seeing that already in the U.S. 

Pam Karlan: And beyond the kind of modern stuff, there’s also just old fashioned voter intimidation. Are you concerned with that happening in this election? 

Nate Persily: I’m concerned. I think it’s going to have a kind of different flavor to it than it has historically, in part because it’s growing out of the insurrection and what we experienced in 2020.

There may be, you know, sort of informal bands of people who engage in intimidation, but my guess is that you will see sporadic instances, sort of tailor made to try to decrease trust in the election and also create a sense that there’s chaos going on. I don’t think that you’re going to see thousands of voters who are going to be prevented from going to the polling place but you could see like some shenanigans where someone dumps a whole bunch of fake ballots into a drop box just to prove a point or someone creates a meme or a story on social media about how a certain polling place is unsafe or something like that, and sor in an environment where there’s this lack of trust in the media, you know, on Election Day, or as we approach it, you should expect to see a lot of this kind of chaotic information that’s, and misinformation, that’s flowing over the various channels.

Rich Ford: So, I mean, the common theme, Nate, here seems to be that we have every reason to have confidence in our electoral process, just as we have every reason to have confidence in the mainstream sources of information, but the threat is that that confidence will be undermined so that people won’t trust the results.

They won’t trust the outcome. They won’t trust the real information. What do you think we can do in order to shore up confidence that’s justified? 

Nate Persily: So I think that, you know, we need to get the resources to our election officials so that they can do their jobs. That includes, you know, the basics that we’ve been talking about, about, you know, processing and counting ballots in time, but also includes resources for cyber security and for them to engage as authoritative sources of information to counteract some of the lies that might be propagated out there. We need to also get local leaders to vouch for the integrity of the election process: local business and faith leaders, people without clear partisan affiliations. There’s really no one at the national level right now who is trusted by both parties to be that person who is widely trusted, and as you said, because people retreat into their own media ecosystem, it’s not as if we have Walter Cronkite anymore, who can say on the evening news, that’s just the way it is, because no one has that level of trust, and so, we’ve been talking about this as if we assume that this is going to be a replay of 2020 or even 2016, and that is possible. It’s also possible that the margin of victory will be large. Now, if we approach the election and there is, the result is likely, I am worried about the willingness of the losing team to kind of engage in violence or engage in sort of destructive behavior.

This is one of the reasons why there’s something that’s called the election administrator’s prayer, which is, Oh God, whatever happens, please don’t let it be close, because if it’s close, then all of the vulnerabilities in the electoral system are seen as outcome determinative, and that’s a situation that we really can’t handle right now, given the lack of trust in the system, and to return it, as we’ve talked briefly about, like the 2000 election, this is not a political and judicial and information ecosystem that could handle Bush versus Gore today, an election that’s decided by 500 votes where people then eventually allow the Supreme Court to, you know, to call timeout, and so the reason 2020 didn’t descend into that, as terrible as the insurrection was, because it required at least two states to be flipped in order to change the result. If it all comes down to one state and one issue in that state, then that is something really to be concerned about. 

Pam Karlan: Well, thank God we no longer have anyplace but in your office, the butterfly ballots. 

Nate has a huge collection of ballots, including some butterfly ballots. This has just been a wonderful opportunity to talk with you, Nate. I’m so glad you were able to come on the show. So thanks to Nate Persily for being with us today. This is Stanford Legal.

If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us to improve and it will get new listeners to discover the show. I’m Pam Karlan, along with Rich Ford. See you next time.