Will 2024 Be A Disputed Election?
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There were 35 people who are responsible for certifying elections at the local level over the past few years who refused to do so. Even that, in a way, has made us more resilient because, frankly, state's attorneys general, secretaries of state have gotten a lot of practice of going to court and forcing them to certify the election results. So they are way more prepared for that than they would have been in 2020.

Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. By this time next week, we may know the results of the 2024 presidential election, but there's also a fair chance that we won't.

Thinking back four years ago, the weeks between Election Day and Inauguration were one of the most contentious and uncertain periods in recent American history. To start, it took four days to project the winner. That was because of a close race in key states, an influx of mail ballots that took longer to count, and news organizations' generally restrained approach to projecting states while ballots are being tallied.

Hold-ups—slow results, litigation, recounts, and audits—can be expected in elections, especially close ones. But they also create space for public anxiety and false information to grow, and can be mined by bad-faith actors.

In the case of 2020, former President Trump declared victory on election night and then launched a months-long attempt to overturn the results once it was clear he lost. He did that through lawsuits, by attempting to assemble an alternate slate of electors, by pressuring the Secretary of State of Georgia to, quote, find more ballots for him, and by discouraging the vice president from certifying the result culminating in January 6th.

All that after years of telling voters that American elections are fraudulent and refusing to commit to a peaceful transfer of power.

It's difficult to predict what's going to happen in 2024, and it may well depend on who wins and how close the results end up being. But many of the factors that led to our experience in 2020 remain in play. So today we're going to talk about them. And here with us to do that is Larry Norton, vice president of the Elections and Government Program at the Brennan Center for Justice. Welcome to the podcast, Larry. Thanks, Galen. So traditionally, people have

turned on their TVs on election night expecting to get a result. What factors determine the timing of results and under what conditions would we expect an extended projection process this time around again? The number one factor, you alluded to this in terms of how quickly we'll be able to, or the networks and AP will be able to call results. And I should be clear, everything's unofficial. Even those calls don't actually legally mean anything. But

The number one factor is how close is the election? If the election is super close, it's just not going to be possible to call the election on election night in many states. We won't have counted all the ballots at that point. There are things called provisional ballots, which are given to voters. It depends on the state, but they may have asked for a mail ballot and then come in to vote in person and be given a provisional ballot. And there's a security step that they have to go through to make sure that the mail ballot was never cast.

They may not have the right ID. There are various reasons why people might be given provisional ballots, but there's a step later to count those. And then in some states like Nevada, they may be continuing to get in mail ballots for a few days after election day. A number of the battleground states, North Carolina, Pennsylvania, Michigan, allow military and overseas ballots to come in several days after the election. So if it's super close, it's just going to take more time than election night to count.

But then in addition, there are laws in different states that may make counting slower. We know this from 2020 when there was an unusual number of mail ballots because, of course, we were in the middle of a pandemic and that's how many people chose to count their ballots. And

In some states, despite election officials and others asking for changes in the rules, states like Pennsylvania, Wisconsin, election officials are not allowed to start processing those ballots until election day. Processing those mail ballots takes time. Again, there's like security checks to go through to make sure that those are valid ballots before you can count them. And so, again, if election is very close, there are a lot of mail ballots and states have rules like that. It's going to take time to count.

I think a lot of Americans look at this process and they understand the concept of a close election, but they think this is ridiculous, right? Like other countries find out the results of their elections faster. I'm used to historically tuning in on election night and finding out who won the election, even in many cases in close elections like 2016. So for folks who look at the way that this works today and think, OK, well, I appreciate you all trying to prepare us for a long slog. Isn't there a better way to do this?

Well, look, part of the issue is that we have a very decentralized system in the United States. There are 10,000 separate election jurisdictions in the United States. Obviously, there are 50 states. Each state decides how it's going to run its election and what the rules are around counting. And I really do want to emphasize this because there's a lot of talk about like, why is X state faster or slower than the other? It has to do with the rules in that state.

It's not because election workers are slower or faster in a particular place. The vast majority of this has to do with what the rules are about when and how to count. To that point, what is the gold standard? You know, if you want a...

rapid result that is accurate and secure, ensuring that only eligible voters have voted, but that you also offer the opportunity to folks to vote by mail or early or whatnot? What is the gold standard for executing that election and counting quickly? Well, first of all, I want to emphasize that while, of course, we want to know the results as quickly as we can. First of all, that's human. And second of all, to the point that you made earlier,

When you don't have results, that's when false information about the elections can really flourish because people are desperate to know something and they're not getting information. And so they will take whatever sorts of information that they can get. But having said that, I think everybody would or should agree that at the end of the day, we want accurate results and we want to make sure that the results are secure, that they have integrity. And that should be the number one goal for everybody.

Having said that, you know, we can look at Michigan. Michigan made a number of changes to their laws over the past couple of years that will allow them to count much more quickly this year. So they gave a lot more time ahead of time for election officials to process mail ballots as they come in. I want to be very clear about something. Counting itself is going to be faster in this election than it was in 2020. Number one, there are way fewer mail ballots.

Again, we're not voting in the middle of a pandemic. Where there are mail ballots, there's been investment in equipment to count those mail ballots faster. And because we're not in a pandemic, all of the precautions that existed around counting at the time, and it's easy to forget this now, but you know, the whole like you have to be six feet apart from everybody else and you have to wear special equipment, none of that exists anymore. So for all those reasons, counting should be generally faster. But again, if it's super close, that doesn't necessarily mean you're going to have a call on election night.

The Georgia Supreme Court recently rejected a bid to hand count the state's ballots. What happened there? This really goes to some of the challenges our system is facing right now. There's a new state board in Georgia that is made up of some election deniers. And I would say they are part of a problem that we have right now where

There are people who are looking to spread false information about elections, decrease trust, and in some ways cause chaos. And the state election board has passed a series of rules that, you know, frankly, the secretary of state himself has said the only purpose that they really served is to slow down the counting of results and to cast doubt on election results. So one of these, frankly, crazy rules that they passed was that before

Before the ballots could be counted by machine and those results sent over to the county, poll workers needed to hand count the number of ballots there were. That takes time. And then those need to be compared to the number of people who signed in. And frankly, the only reason that I could think to do that, because there are all kinds of – and we can talk about this – there are all kinds of canvassing processes that

at the end of the day to make sure that vote tallies are correct. The only reason I could see for that particular proposal, and there were other kind of crazy proposals that they've made, is to make the count slower and then to provide some fodder for somebody to say these results can't be trusted. So this is one example of litigation, but the 2024 election may well be the most heavily litigated election in American history, and 165 lawsuits have already been filed with more expected votes.

And to be clear, legal challenges surrounding elections are not abnormal by any stretch, and they do not belong to one party by any stretch either. But in this election, what kind of legal challenges have been filed and are we expecting?

Yeah, you are correct that there's always litigation ahead of ahead of during after elections. That is normal. I think what's different about this is the number of lawsuits. They're particularly heavily focused in battleground states. There's a common theme in all of them, which frankly is amplifying kind of conspiracy theories around the election. They're not necessarily being brought to win, right?

But they echo a lot of the conspiracy theories and their purpose seems to be to, A, amplify those conspiracy theories, B, cause chaos and allow for an opportunity to challenge ballot.

ballots after election day. And the reason that I say this is because the plaintiffs are often not asking for relief ahead of the election. So I'll give you a few examples of the kinds of litigation that we are seeing. One is challenging the voter rolls and challenging who is on the voter rolls. Another is challenging mail ballots generally. And the third is around voting machines and the use of voting machines in the elections.

I'll give you a couple of examples of why some of this litigation is so problematic and why I think it's fair to say that its primary purpose is not actually to win but to undermine faith in the election system. A lot of the challenges to the voter rolls –

And there are various reasons why they say the voter people should be purged from the voter rolls, which which, by the way, is also a normal part of maintaining voter rolls is ensuring that you don't have duplicates of people in other states, making sure there are not dead people on the voter rolls and the like. So wanting to have a clean and accurate voter roll is essential.

A legitimate pursuit.

But in those cases, in general, the plaintiffs did not ask for emergency relief. When they have, they've generally lost. But they didn't ask for emergency relief or they brought them after what's known as the 90-day period before Election Day where there is a federal rule against systemic purging of voters. All that has to happen before the 90 days.

And in fact, one of the groups that brought nine of these cases actually said the purpose of this, these litigations, is to pre-position standing for after the election to say that the rolls can't be trusted or that certain votes should be knocked out.

Because they could have asked for the relief months ago and decided not to. Another example that I'll give of this is challenges to military and overseas voters. There's been litigation in Michigan, North Carolina, and Pennsylvania that says some of these ballots should be segregated, should not be counted. The Brennan Center is representing military families, overseas voters in the Pennsylvania case.

In that case, the argument is – and this is just federal law – that the ID requirements for military and overseas voters is different than for other voters.

That case could have been brought 10 years ago. Actually, it could have been brought 20 years ago. It could have been brought nine months ago. It wasn't brought until the ballots were sent to military and overseas voters and people had already started sending them in. As far as I'm concerned, there wasn't a real concern about this. The concern is to cast doubt on the election results and to potentially position themselves after the election to say that certain votes shouldn't be counted.

So what kind of litigation are you suggesting that these groups are preparing for after the election happens, both these groups and the campaigns, the Harris and Trump campaigns themselves?

Certainly, there is legitimate litigation contests after every election. That is standard and we see it maybe not in every contest, but every federal election we will see some litigation around whether certain mail ballots should be counted, asking for a recount, saying that some procedures weren't followed. That's standard. What we saw in 2020 was not standard.

The kinds of litigation that we saw and almost every lawsuit that was filed was thrown out was an attempt to prevent certification by making claims after the fact that the entire thing was fraudulent.

So there may be just claims to throw out election results. I certainly think, unfortunately, we're going to see local election officials who don't certify their results. I should say there's a process, right? You have people come in, they vote on election day. Those votes are counted. There's an unofficial count. There are all kinds of processes after that that have to happen to make sure that the system worked as it was supposed to. And at that point,

as a kind of ministerial step, local election officials, people at the county town level are supposed to certify and send those results to their secretary of state or chief election official. We know that,

just from what's happened in 2020, but particularly in 2022, that there are some election deniers who are in those roles of certifying the elections who aren't going to certify. There's certainly going to be litigation around that. There has been in 2022, 2023, and the primaries in 2024. You've had 35 officials certifying

refused to certify local election results, and they were brought to court by either one of the candidates' parties or most often by the state's chief election official. You know, there could be standard litigation disputes over how particular votes should be counted. A lot of the litigation of a 2000 election was

When we're doing a recount, which vote should count, which vote should not. It's no longer about is who voted legitimately voting. Those votes are counted. But it's should this vote count for Gore? Should it count for Bush? Is it unclear who the vote is really for? That's a very standard kind of litigation that happens afterwards.

You mentioned increasingly an issue of local administrators not certifying elections. Of course, those people are brought to court on a state level. Federally, Congress passed the Electoral Count Reform Act since the last election. How much does that change in terms of streamlining our electoral count process?

It makes a huge difference. So the Electoral Count Reform Act did a few things. First of all, it set December 11th this year as a deadline by which states have to certify their results. That's when a certificate of ascertainment is issued generally by the governor.

So one of the disputes that we had in 2020, there was an alternate set of electors the Trump campaign tried to have created that state legislators or others would appoint an alternate set of electors to what the state had submitted and that they would go before Congress. The Electoral Count Reform Act says,

It is the governor that issues the certificate of ascertainment that appoints the electors, and that's the only one that will be accepted by Congress. There should no longer be any kind of dispute about which is the right set of electors. One of the other key things that it does is it really raises the threshold that

for Congress to accept objections to the electoral slates that have been submitted. So whereas in 2020, it was possible for one senator and one member of Congress from a particular state to object to that slate of electors, it now has to be 20% of each chamber. So it's going to be a much more challenging thing to do.

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The Brennan Center conducted a poll this year that showed that 38% of local election officials have experienced threats, harassment, or abuse, which is an 8% increase from 2023. And a majority, 54%, are worried about the safety of their colleagues and staff. Last month, suspicious packages containing harmless white powder were mailed to election officials. What

What is the threat environment like for these officials right now? And what is being done to ensure their safety?

Yeah, I would say the threat environment is way higher than it should be. And it's no question as we approach the election that it is heightened. And I'm particularly worried about the period after the election. The information environment is terrible right now. And in many ways, it is much worse than it was in 2020. You have a lot of lies being told about the way our elections work and about how they should be trusted and about what election officials themselves are doing.

You noted the suspicious packages that were sent to all these offices around the country. They often were sent with very threatening messages as well. Election officials said,

You know, unfortunately, have a lot of terrible stories to tell about being swatted where somebody calls into the police and gives their address of their home and says that they need to show up there, which can be extremely dangerous about being doxxed, having people show up at their homes, threatening them in addition to threatening them at their workplaces. And this is frankly because a lot of the lies that are being told about the way elections work. And, you know, it's not just.

some random crazy people that are spreading these rumors. You actually have, you know, on a social media platform like X, the owner, Elon Musk, of the platform who has, I don't know, 100, 200 million followers spreading a lot of these lies about the way that the elections work and who is to blame. So the threat environment is very high. And, you know, the danger is in this period after the election, if people are claiming that the election was rigged, that it could get worse.

As bad as it is, there's been a lot of preparation done since 2020 to be ready for this election and the threat environment. So there's been a lot more cooperation and planning with law enforcement than there was ahead of 2020. I'm part of this group that supports something called the Committee for Safe and Secure Elections, which is law enforcement and election officials working together. They often do tabletop exercises, planning. They have each other's

information. So in that sense, and there's been some investment in increasing physical security at election offices. So even though the environment is in some ways as bad or worse, the preparation is much higher than it's been. The other thing that our polls show was 92% of election officials

talked about various ways election security had increased since 2020. We've been talking about the procedural piece of election integrity, but of course, democracy only works if the public is bought in. And as was the case with 2020, there are concerns about

rumors and false information that can lead people to not trust the outcome of the election. There is a solid chunk of Americans, at least a third in most polls, who still don't trust the outcome of the 2020 election. What kinds of rumors are we mainly seeing when it comes to this false information being spread about the election? I would break it down into three categories. One is people who shouldn't be able to vote are voting.

The second is the technology is rigged in some way. And the third is election workers are rigging the election in some way. And then there are variations on all of that, right? So this year, there's no question when we're talking about illegal people voting, it is focused on non-citizens, right? There's been a very deliberate effort to focus on non-citizens. Having said that,

There is a certain trajectory to misinformation around elections, and it follows where we are in the election cycle.

If we're talking about mail voting and you look back at 2020, before people started voting, a lot of the focus was on the voter rolls, on mail ballot applications being sent to the wrong address. When you get into the election period, it's about people finding thrown out ballots or their ballots not being delivered. After the election, it's about bamboo fibers and these ballots must have come from China or something like that.

We're seeing the same thing right now. So there was a lot of focus on the voter rolls and on groups that were registering voters. We are now seeing we're in the voting period. A lot of the rumors that are circulating are more focused on voting technology glitches, for instance. You saw something recently about, and I'm sure we'll see more of this, somebody claiming that they went in and voted on the machine and it produced a different result than who they had intended to vote for. So it kind of follows that progression.

To the point about non-citizens voting, one of the things I do is, you know, give talks to folks around the country. And I oftentimes answer questions that people have about the election. And these are groups of all different kinds of persuasions. And I frequently get questions about election legitimacy and in particular, non-citizen or ineligible people voting.

How do states ensure that only eligible voters are casting ballots? Because I, you know, I tell these folks, these are people who have been told by people that they trust that there are immigrants in the country illegally casting ballots or what have you. And of course, if you believe that's the case, that's outrageous. And so how do you ensure for these folks who believe this, that this is not happening?

States have multiple systems in place to ensure that only citizens can vote in elections. And most importantly, anybody who is registering to vote has to sign under criminal penalty that they are a citizen of the United States. You know, if you think about it, it would be somewhat insane. You are a non-citizen. You've moved your family to the United States.

to risk prison time and deportation, particularly if you are not legally here, you're living in the shadows, come out publicly, leave a record of what you've done, and risk all of that to get deported. And one of the things that I point to is this issue has really been studied. There have been a number of independent studies. They all show the same thing, that it is vanishingly rare for there to be non-citizen voting. And it's not just independent studies. It's also investigations

by attorneys general and secretaries of state from pretty conservative places like Texas and Ohio and Florida. And again and again, what they show is this is a vanishingly rare thing to happen.

I mean, for example, of course, Georgia's Republican secretary of state just found that there were only 20 non-citizens registered to vote in the entire state of Georgia. So that gives you one example of folks studying this issue and the results that they're finding. I mean, we often say that voter fraud of all types is exceedingly rare. And when it happens, it is uncovered and prosecuted. How is it uncovered?

And it depends. But I think the thing to remember about elections is that there's a paper trail for everything. So when you show up to vote, you've got to sign your name. In many places, you're showing some kind of ID. Everything is on record. Whoever is registered, I mean, you talked about this Brad Raffensperger investigation. We have a list of everybody who was registered to vote. So it's not difficult to do an investigation to figure out if any of those people shouldn't have been entitled to vote.

Are those people dead? Have they moved? Are they non-citizens? So there's a lot of political pressure to look into this. And there's always going to be a paper trail of who voted, where they're from, to go back and check. And of course, also the actual ballots. 98% of Americans will be voting on paper ballots in this election.

You mentioned voter I.D. That's something of a political hot potato. The clear majority of Americans support voter I.D., but it's something that Democrats have been very reluctant to implement because of claims that it disenfranchises people. I mean, if you do look at other democracies around the world, voter I.D. is very common in this environment. What is the reluctance to have voter I.D.?

I mean, I can't speak for everybody, but I'm not sure how much of a reluctance there is. I feel like a lot of this argument over voter ID has been a little bit oversimplified and misrepresented. I think that the real question is what ID? You reference other countries. Many countries have a national ID. Everybody has an ID. That's the ID that you use to vote. Maybe it's your medical card. A lot of the controversy around these voter ID laws has been...

only allowing certain IDs. And I often talk about the example in Texas where you're allowed to use your gun permit, but you're not allowed to use your student ID, right? That it's sort of nakedly partisan, essentially. It's like you try to figure out what IDs your voters have, and that's the ID that you allow. Right. And my question is, are you, is the requirement for ID trying to prevent certain people from voting? One thing that a lot of people don't know is that, you

For any new registrant, you do have to provide ID. That is required under the Help America Vote Act. So again, I think that this often gets oversimplified and it's really more of a political question than anything else.

For the past few cycles now, we've seen online campaigns from countries like Russia, China, and Iran to sow disinformation here in the U.S. We've been talking a lot about Georgia, but recently Georgia even reportedly fended off a cyber attack on its voting website from what was likely a foreign country. What kinds of interference efforts have we seen from foreign adversaries to the U.S. this election cycle, and what are you worried about?

The intelligence agencies have made pretty clear that in many ways this is the most complex and sophisticated foreign interference operations that we have seen in the US. We've seen interference from, in particular, Russia, Iran, and China.

They've all been using AI in different ways. Russia, in particular, has created fake news sites. It has created AI-powered bots that have directed people to those fake news sites. As has been reported, it paid influencers in the United States to spread Russian propaganda. It's been a pretty sophisticated operation. And of course, there was more recently reported news

This AI generated video that purported to show somebody accusing Tim Walz, accusing him of sexual assault. And Iran, as I think a lot of folks know, successfully hacked the Trump campaign and got some emails from that hack.

It's been a very active effort on the part of our adversaries. What the intelligence agencies have been warning about in particular right now and I am very worried about is the post-election period. We know that in 2020, Iran attempted to incite violence against election officials with an enemies of the people website that it created that actually specifically targeted election officials who were responsible for certifying the election.

And what the intelligence – U.S. intelligence agencies have been saying is they expect Russia and Iran in particular to attempt to foment and incite violence and push on the divisions in the United States in that post-election period.

You mentioned AI. There was a period maybe about a year ago where when it seemed like this was going to be the AI election and there were some nightmare scenarios of what could play out. It seems like apart from the marginal things that you have mentioned, of course, if a foreign adversary is trying to mess with public opinion, that's a problem. But I don't think that anyone would argue that these are things that are really swaying this election.

Is it fair to say that these nightmare scenarios about AI in the election have not come to pass? I guess what I would say is, first of all, the election, we're not even at election day yet, and there's the post-election period. We may not know, even after the post-election period, how AI was used in our elections.

But the way the media works, I think, is you're right. There were kind of these apocalyptic stories that were written about what might happen with AI in this election. So that anything short of there was some AI-generated video that fooled everybody and actually tipped the election results. And we got some time left on the clock, of course, as you mentioned. We do. Yeah.

First, I just want the caveat that I certainly don't feel like I know all the ways that AI has been used. And it still may be used in ways that we will find troubling in the weeks and months to come. My impression so far of the way AI has been used is that many of the things that people were predicting have happened on some small scale.

People were predicting that folks would use, and this is what the Russians have done, used AI to create fake news sites. They were predicting the use of chatbots. They were predicting, you know, the deep fakes that we had of like Biden with the robocall in New Hampshire. But what's really happening now is people are experimenting with it. Goldman Sachs had a report out in 2023 where they said there's already been this huge investment in AI, but we're not expecting AI.

massive adoption of that technology across most industries until the second half of the decade. I think what we've seen a lot so far of AI is a lot of experimenting. And there are a lot of clues about how AI may be used going forward, including creating fake bot networks, including memes and having candidates. That has certainly there's been a lot of that aren't necessarily meant to

fool anybody, but to give folks a feeling about what the truth is. In any case, I think there are a lot of lessons to learn in the various ways that it's been used so far, even from what we know. Lastly, I know we've been talking a lot about challenges to the integrity of this election, but I do want to ask, how robust do you think our system is from where you sit today?

I think it is more robust than it has ever been. So I just want to point to a few things. You talked about the fact that there'll be a paper ballot for the votes of 98% of Americans. That's huge progress. I hear people talking about we need to have paper ballots. We do have paper ballots. In fact, there's been a lot of progress around that in the U.S.,

As I said, there's a lot more cooperation in civil society between law enforcement and election officials to be prepared for threats and violence. The courts have really held up so far in this election with these kind of specious challenges in putting groups like the State Board of Elections in Georgia that have been passing all these ridiculous rules in their place to make sure that the election can run smoothly. I find that very encouraging.

And we learned a lot from 2020. So we passed the Electoral Count Reform Act to kind of close out the ability of a candidate to try to sabotage election results. You know, I mentioned earlier there were 35 people who are responsible for certifying elections at the local level over the past few years who refused to do so. Even that in a way has made us more resilient because –

Frankly, state's attorneys general, secretaries of state have gotten a lot of practice of going to court and forcing them to certify the election results. So they are way more prepared for that than they would have been in 2020. So all of that makes me feel much more confident that at the end of the day, we're going to be able to trust

election results. The one area where I am most worried about is disinformation. You mentioned how many people don't trust our election results. The effort to undermine confidence in elections in the United States is much better funded

is much better coordinated than it was in 2020. Even the litigation, while I think it's ridiculous, it's done better than it was in 2020. The planning for a post-election attempt to cast doubt on the election

is leagues ahead of what it was in 2020 when you had Rudy Giuliani and the Four Seasons press conference. There is much better preparation now for that moment, if it comes, than we had in 2020.

All right. Well, we're going to leave things there for today. Thank you so much for your insight, Larry. Thank you, Galen. Appreciate it. Larry is vice president of the Elections and Government Program at the Brennan Center for Justice. My name is Galen Druk. Our producers are Shane McKeon and Cameron Chartavian, and our intern is Jayla Everett. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon.

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