Election in Peril Procedural Risks to the 2020 Presidential Election July 2020 About MapLight MapLight is a nonpartisan 501(c)(3) nonprofit that seeks to achieve a government that (actually) works for the people. We illuminate the influence of money in politics, facilitate informed voting and civic engagement, and advance reforms that make government more responsive to the people. Our database, online tools, research, and policy work help to expose and counter the hidden influences on our democracy. MapLight is based in Berkeley, California. Learn more about MapLight at https://maplight.org/. About the Authors Laura Curlin is the Data Director of MapLight, overseeing the organization’s research and data projects. Previously, she worked to pass a public campaign financing ballot measure in 2016 as treasurer of the Berkeley Fair Elections Coalition. Her previous experience also includes work on the Transparency in Political Spending Act as a member of Rhode Islanders for Fair Elections. Laura received a B.A. from Brown University with concentrations in Political Science and Middle East Studies. Bergen Smith is a Data Analyst at MapLight, analyzing campaign finance and other data for a variety of projects. He graduated from California State University, East Bay with a M.S. in Economics and from Whitworth University with a B.A in Philosophy. Acknowledgments We gratefully acknowledge the following election experts for sharing their knowledge with us during in-depth interviews: Rosa Brooks, Edward Foley, Richard Pildes, Sam Issacharoff, Josh Douglas, Lisa Manheim, and Hugh Spitzer. We also recognize the contributions from other MapLight staff that made this project possible. We appreciate the work of Ann Ravel and Daniel G. Newman conducting interviews with election scholars. Thanks are also due to Chad Outler and Alyssa Bernardino for their research assistance. Tien Lu, Alec Saslow, and Frank Bass helped with editing the report. Finally, thanks to Heather Caviston for sharing her design skills with us. CONTENTS Executive Summary ......................................................................................................4 Key Risks in 2020 .................................................................................................................5 Disenfranchised Mail Voters ...............................................................................................6 Public Pressure on Overtime Ballots ............................................................................... 7 Challenges in the Electoral College ............................................................................... 10 Federal Requirements ................................................................................................ 12 The Electoral College .........................................................................................................12 Ballot Dispute Resolution ................................................................................................. 14 “Faithless” Electors .............................................................................................................15 Swing State Profiles ........................................................................................................... 16 Arizona .......................................................................................................................................18 Colorado ...................................................................................................................................22 Florida .......................................................................................................................................25 Georgia ..................................................................................................................................... 30 Iowa ............................................................................................................................................35 Maine .........................................................................................................................................40 Michigan .................................................................................................................................. 44 Minnesota ................................................................................................................................ 49 Nebraska ...................................................................................................................................53 Nevada ......................................................................................................................................57 New Hampshire .......................................................................................................................61 North Carolina ....................................................................................................................... 65 Ohio ........................................................................................................................................... 70 Pennsylvania ...........................................................................................................................74 Texas...........................................................................................................................................78 Virginia ......................................................................................................................................82 Wisconsin ................................................................................................................................ 86 Executive Summary Public confidence in the integrity of our elections is crucial for the peaceful and democratic transfer of power. That confidence, however, is coming under siege from internal and external players, raising the specter of another election whose legitimacy is questioned. In addition to being held during a contentious and polarizing time, the 2020 presidential election will be subject to complex procedures not well known to the general public, and its integrity will be dependent upon leaders acting in good faith. While some states have taken steps to ensure that their citizens can vote safely in November, in others, politicians fighting over adaptations to the COVID-19 pandemic are already demonstrating that some officials will put the opportunity for a partisan victory over ensuring every citizen’s right to vote. Public education about election procedures and advocacy for policy improvements will be critical to ensuring the legitimacy of the 2020 election cycle. MapLight has uncovered multiple danger points for a general election that is being compared to the watershed 1860 contest for its potential to spawn more divisiveness and polarization. These potential trouble spots include: • The continued coronavirus pandemic, which many experts believe will worsen in the fall, has the potential to depress turnout by discouraging voters from visiting crowded polling places. Many states are taking a proactive approach by planning for increased mail ballots, which present a potentially unique set of challenges. • Already, President Trump (who, along with his wife, attorney general, daughter, and campaign manager, voted by mail during the 2018 midterms) has described voting by mail as an invitation to massive fraud.1 The president’s opposition makes it less likely that some Republican-controlled legislatures will act to ensure that all Americans can vote without fear. • Mail ballots may be delayed in an overwhelmed Postal Service, both in their distribution to voters and in their return to election officials. In many states, ballots that are not received by Election Day are rejected, and voters that do not receive their ballot in time would have to go to the polls in person to cast their vote. • Even absent fraud and political opposition, mail ballots will likely not be counted as quickly as votes cast at polling places. Delays could lead to false claims of victory by individual candidates, throwing the legitimacy of the election into further doubt. • A dispute over state election results could also throw the Electoral College into legal and political chaos if two sets of electoral votes from the competing parties are sent to Congress. A split would be possible in states such as North Carolina or Wisconsin, where government control is bitterly divided among separate branches. • Delays caused by a flood of mail ballots also could compromise the 2020 election. Electors must be named by December 8, six days before the Electoral College meets to officially name the winner of the contest. In the current political environment, however, it’s entirely possible that time-consuming legal challenges by losers could spur different states to take different approaches to naming electors, which then would also likely be subject to legal challenges. • Although it’s highly unlikely that a third-party candidate would siphon enough votes to prevent the Republican or Democratic nominee from obtaining more than 270 electoral votes, history has shown that it would be foolish to rely upon 2020 to follow a normal pattern of behavior. If neither 1Steib, M. (2020, June 22). Trump Staffers Who Voted By Mail, a Process He Calls ‘Rigged.’ New York Magazine. Retrieved from https://nymag.com/ intelligencer/2020/06/every-trump-ally-who-has-voted-by-mail-list.html ELECTION IN PERIL: PROCEDURAL RISKS TO THE 2020 PRESIDENTIAL