The Swing States Are in Good Hands
5 min read
In thinking about the days and weeks after November 5, when unfounded attacks on the vote count and the integrity of America’s election are most likely to arise, one must begin with an uncomfortable acknowledgment: The threat to the fair evaluation of the results comes from only one party. There has never been any suggestion that Democratic officials are likely to systematically disrupt the lawful counting of ballots. The risk, such as it is, comes from possible spurious legal challenges raised by Donald Trump supporters, partisan election administration by Republican state officials, and unjustifiably receptive consideration of election lawsuits by Republican-nominated judges.
The good news is that in the states most likely to be decisive, that group of people is not in control. The mechanisms of election administration are, generally speaking, in the hands of responsible public officials rather than partisan warriors—mostly Democrats, but a few clearheaded Republicans as well.
Consider Georgia, where the most senior officials are all elected Republicans who have, in one way or another, expressed their support for former President Trump. Yet both the governor, Brian Kemp, and the secretary of state, Brad Raffensperger, have a notable and honorable history of commitment to free, fair, and well-managed elections. For example, both recently opposed the transparently partisan efforts of the state election board to change election rules. If the past is prologue, we can reasonably expect that the contest in Georgia will be close, but we can also expect that the process by which the votes are counted will be fair and open.
The same is true of all the other battleground states. Those states—Wisconsin, Michigan, Pennsylvania, North Carolina, Arizona, and Nevada—are, of course, led by elected politicians who have partisan views, but none is a leader whose nature suggests a desire to manipulate election administration for partisan advantage. Most of the states (Wisconsin, Michigan, Pennsylvania, North Carolina, and Arizona) are led by Democratic governors who can be counted on to deliver the results fairly.
That leaves Nevada, which, besides Georgia, is the only Republican-led swing state. Nevada’s governor, Joe Lombardo, has expressed moderate views on the election process: In an April 2022 interview with The Nevada Independent, Lombardo said he did not believe that any fraud occurred in the 2020 presidential election and saw no reason to believe that President Joe Biden had not been “duly elected.” Of equal note, the secretary of state for Nevada, who has more direct responsibility for election administration, is an elected Democratic official who has committed to a fair election process.
All told, none of the elected officials in any of the battleground states who have direct responsibility for election integrity is an election denier or someone who appears keen on having a partisan dispute over the results. One could not, for example, imagine any of these governors using their state’s National Guard for improper reasons.
Likewise, the court systems in the crucial battleground states are generally well structured to avoid partisanship. Republicans have already filed suits in Pennsylvania, North Carolina, Wisconsin, Nevada, Georgia, and Arizona, and doubtless many more will be filed. But as the former Trump White House lawyer Ty Cobb has said: “The one thing they need in court is evidence … They didn’t have any last time, and they’re unlikely to have any this time.”
Once again, Georgia provides an instructive example of how Trump’s efforts to legally game the system are likely to play out. Last week, a Fulton County Superior Court judge stopped a new election rule that would have required officials to count all Georgia ballots by hand. In a separate ruling, the court also said that certification of the election results was a mandatory duty—eliminating the possibility, which some Trump allies had been considering, of withholding certification and preventing Kamala Harris from receiving the state’s electoral votes should she win. Separately, a different judge barred even more of the election board’s efforts to change the rules at the last minute. At least one Republican appeal has already been unsuccessful.
The likeliest ultimate arbiter of election disputes will, in most instances, be the supreme courts of the battleground states. Partisan tenor is somewhat less salient in the courts, but even taking it into account here, structural protections are mostly quite strong. Democratic jurists hold majorities on the supreme courts in Wisconsin, Michigan, and Pennsylvania. Nonpartisan appointments are made in Nevada.
And though the courts in Georgia and Arizona are controlled by Republican-appointed jurists, neither court has exhibited excessive partisan tendencies. Indeed, the all-Republican supreme court in Arizona recently unanimously upheld a ballot-access rule against an effort by the Republican Maricopa County recorder to limit the number of voters. Only the Republican supreme court in North Carolina has acted in a worryingly partisan manner, approving a Republican gerrymander that a Democratic court had previously rejected. This is thankfully an outlier; the overall correlation of factors suggests, again, that reasonable jurists will be in charge of adjudicating disputes about election outcomes.
Finally, at the national level, fair, good-faith efforts are being made to protect the processes by which the election will be certified. Unlike on January 6, 2021, when Trump put Congress at risk by delaying the deployment of the D.C. National Guard, this time the federal government is well prepared to forestall disruption in the nation’s capital. The Department of Homeland Security has already designated the electoral count as a National Special Security Event, for which ample protection is deployed. And, of course, the D.C. National Guard is now under the orders of Biden, who can be relied on to maintain election integrity.
Is all this cause for unbridled happiness? Of course not. The U.S. Supreme Court, for example, remains an uncertain actor. And that we even need these reassurances is a distressing sign of how dysfunctional our current politics are. But a smooth—or, at least, mostly smooth—election is still possible, and the key ingredients are in place to make it happen. This itself matters. As the former federal judge Thomas Griffith recently wrote: “Tearing down faith in an election administration system when the facts show that it is reliable and trustworthy is not conservative.” It is also deeply dangerous. Let’s do our best to keep the faith.
