"In 2020, Trump complained the election was rigged.
This time, he’s doing the rigging.
Everyone knows that you don’t change the rules in the
middle of the game just because you don’t like the way
the game is going — everyone, that is, except Donald
Trump and his MAGA allies.
Four years ago, they complained bitterly that states
were not following long established rules in the
conduct of the presidential election. Today, Trump and
his friends have changed their tune, with a well-
developed strategy designed to make sure that the rules
of the 2024 election will rebound to their advantage.
It has already produced results.
The Brennan Center for Justice reports that “between
January 1 and December 31, 2023, at least 14 states
enacted 17 restrictive voting laws, all of which will
be in place for the 2204 election.” Backed by the
former president, those changes will mean voters “now
face additional hurdles to reach the ballot box.”
The report goes to on specify: “Most of the
restrictions limit mail voting, such as requiring
additional information on a mail ballot application,
shortening the window to request a mail ballot, or
banning drop boxes.” In addition, “at least six states
enacted seven election interference laws….Many create
criminal penalties for election workers for minor
mistakes such as not allowing a poll watcher to stand
close enough to voters.”
Such efforts did not end last year. They are continuing
even as voters in several states have already started
casting their ballots.
Last week, we saw new evidence of these efforts in
Nebraska and Georgia. Those efforts are nakedly
partisan and threaten to throw a wrench into the
campaign as it enters the home stretch.
State legislators and election officials in those and
other states must remember that their duty is to ensure
the fairness and integrity of the electoral process,
not follow the MAGA playbook. They should be guided by
the wisdom of the “Purcell Principle,” which, as
SCOTUSblog explains, holds that “courts should not
change election rules during the period of time just
prior to an election because doing so could confuse
voters and create problems for officials administering
the election.”
That principle derives from the 2006 Supreme Court case
Purcell v. Gonzalez, which dealt with an Arizona law
(Proposition 200) “requiring voters to present proof of
citizenship when they register to vote and to present
identification when they vote on election day.”
A lower court had barred Arizona from enforcing
Proposition 200 a mere four weeks before the 2006
midterm elections. The Supreme Court was troubled by
such a change in election procedures “just weeks before
an election.”
“Court orders affecting elections,” the justices wrote,
“can themselves result in voter confusion and
consequent incentive to remain away from the polls. As
an election draws closer, that risk will increase.”
Strictly speaking, the Purcell Principle applies only
to courts. But its concerns about voter confusion, and
the possibility that late rules changes might have a
deleterious effect on voting, should be the concern of
legislators, election officials and even candidates for
office, not just judges.
Trump and his allies care less about the possibility of
voter confusion and keeping voters away from the polls
than they do about changing the rules to gain electoral
advantage.
Just look at what they tried to do in Nebraska.
According to a state law adopted in 1991, the state
does not “use the winner-take-all approach to awarding
electoral votes. The winner of the popular vote gets
two electoral votes, while one is assigned to the
winner of each of the state’s three congressional
districts.”
It is one of only two states, the other being Maine,
that awards its electoral votes in this manner.
Nebraska Public Media notes that bills recently “have
been introduced in Wisconsin, Michigan, and New
Hampshire to go to a split electoral system, but
they’ve stalled in legislatures.”
Nebraska is a reliably Republican state. The last time
it voted for a Democratic presidential candidate was
1964.
But twice — in 2008 and in 2020 — its Second
Congressional District, which includes Omaha, cast its
one electoral vote for the Democratic presidential
candidate. The first time, it went to Barack Obama; the
second time was to Joe Biden.
With the 2024 election being a toss-up, Team Trump
launched a full-court press to get the state’s
Republican-dominated unicameral legislature to change
its election laws. As ABC News reports, he wants “to
reapportion the three electors awarded to the winner of
each of the state’s three congressional districts,
instead awarding all five of them to the overall victor
of the state.”
All five members of Nebraska’s congressional delegation
have vocally supported Trump’s desire to change the
rules. On Sept. 18, they wrote a letter to their state
legislative colleagues saying that “the state should
speak with a united voice in presidential
elections….After all, we are Nebraskans first, not
members of Nebraska’s three congressional districts.”
Trump himself has intervened, speaking to at least one
Nebraska legislator about the need for the change.
Leaving no stone unturned, he dispatched the ever-loyal
Sen. Lindsey Graham (R-S.C.) to go to Nebraska and
lobby on his behalf. Between now and Election Day,
Nebraska officials can expect more calls from Trump and
visits from MAGA luminaries.
While it appears the move has been thwarted in
Nebraska, thanks to Gov. Jim Pillen’s failure to call a
special legislative session, the Trump strategy of
changing the rules in middle of the game has been more
successful in Georgia.
Last Friday, less than a month before early voting
begins in that state, the Georgia State Election Board
approved a rule change “requiring counties in the
critical presidential battleground to hand-count the
total number of ballots this year.”
The Washington Post explains that “the move was
spearheaded by a pro-Trump majority that has enacted a
series of changes to the state’s election rules in
recent weeks and approved the hand-count requirement
despite a string of public commenters who begged board
members not to.”
The new rule “requires the hand count to take place the
night of the November election or the next day.”
Election officials from across the state said that
doing so “would be physically impossible in all but the
smallest counties,” and Chris Carr, the state’s
Republican attorney general, said “that state law does
not permit hand-counting ballots at the precinct
level.”
But to no avail.
If Trump does not win Georgia, the new rule seems
likely, as the New York Times put it, to
“significantly delay the reporting of results in the
battleground state” and inject the kind of chaos into
the 2024 election that the Supreme Court has warned
would accompany late changes in election rules and
procedures.
If Trump loses, Americans need to buckle up and ready
themselves for a post-election period every bit as
difficult and damaging to democracy as what happened
after the 2020 election."
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